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James Z. George 



THE POLITICAL HISTORY OF 
SLAVERY in the UNITED STATES 

BOOK I. 
The Political History of Slavery in the United States 

BOOK II. 
Legislative History of Reconstruction 



BY 

JAMES Z. GEORGE 

Formerly Chief Justice of the Supreme Court of Mississippi and later 
United States Senator from that State 

WITH A FOREWORD AND WITH A SKETCH OF THE AUTHOR'S LIFE 
BY 

WILLIAM HAYNE LEAVELL 

American Minister to Guatemala 

AND WITH A PREFACE, SOMEWHAT IN THE NATURE OF A PERSONAL TRIBUTE 
BY 

JOHN BASSETT MOORE 

Professor of International Law and Diplomacy 
Columbia University 



Read Carefully in Proof by Dr. Austin Baxter Keep, of the 
Department of History of the College of 
the City of New York 




NEW YORK 

THE NEALE PUBLISHING COMPANY 

1915 



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Copyright, 1915. by 
THE NEALE PUBLISHING COMPANY 



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JUL 23 1315 



CONTENTS 

PAGE 

Foreword by William Hayne Leavell vii 

Sketch of the Author's Life by William Hayne Leavell . . . ix 
Introduction by John Bassett Moore xxi 

BOOK I 

THE POLITICAL HISTORY OF SLAVERY IN THE UNITED 

STATES 

CHAPTER 

I. Negro Slavery at the Time of the Formation of the Con- 
stitution of the United States 3 

II. Acquisition of Louisiana 18 

III. The Hartford Convention 22 

IV. The Missouri Question 30 

V. Repudiation of Compromise on 36° 30' 44 

VI. The Annexation of Texas S 2 

VII. Was the Missouri Compromise Violated by the South ? . .62 

VIII. Lincoln and the Douglas Debate 7° 

IX. John Brown's Invasion of Virginia 74 

X. Secession 89 

XI. The War and Its Purposes 102 

BOOK II 

LEGISLATIVE HISTORY OF RECONSTRUCTION 

I. First Steps in Reconstruction 119 

II. The Fourteenth Amendment 132 

III. The Bill a Measure of Punishment and Ruin . . . .155 

IV. The Military Bill in the Senate 158 

V Dishonor to South in the Fourteenth Amendment . . . 166 

VI. Further Meddling 181 

VII. Reconstruction Under These Laws 188 

v 



vi Contents 

CHAPTER PAGE 

VIII. Debates and Action on the Reconstructed States . . . 192 

IX. Repeal of the Law as to Appeals to the Supreme Court . 209 

X. Presidential Election of 1868 221 

XI. The Fifteenth Amendment 250 

APPENDIX 

Views of the Minority of the Judiciary Committee of the United 
States Senate on the Constitutional Questions Involved in 
the Bill to Provide for Inquests Under National Authority . 279 

Index 333 




u 



FOREWORD 

In offering this book to the public I know that it is frag- 
mentary in the sense that the whole purpose the author had 
in view in writing it has not been achieved, although the parts 
presented are in themselves complete. 

When in the middle of his last term Senator George an- 
nounced that he would not offer for reelection it was his ex- 
pectation to devote the leisure to be thus secured to the discus- 
sion of the constitutional deficiencies of the reconstruction 
legislation, especially that part of it which interferes with the 
unhindered right of the States to regulate the suffrage, add 
that as the third and last section to the book, and so complete 
his whole plan. Unhappily he was overtaken by death before 
the day of his leisure arrived. 

After the author realized he would not be permitted to ac- 
complish all he sought when he began writing he doubted the 
wisdom of publishing any part of the book, but left the de- 
cision of that question as well as the preparation of the manu- 
script for the press in the hands of his friend and successor, 
the Honorable H. D. Money. 

Mr. Money decided to publish so much of the work as was 
completed, but because of his defective eyesight deferred the 
matter for some time in the hope that his eyes would improve. 
However, finding that hope vain, he undertook the necessary 
labor despite his defective vision, and read the difficult hand- 
writing of Senator George to an operator who made a type- 
written copy of the original manuscript. 

But when he had proceeded thus far Mr. Money realized 
that, because of his imperfect vision and his own multiplied 
duties, it was altogether impracticable for him to devote to the 
task the necessary time and attention ; so he reluctantly aban- 
doned the effort and returned the manuscript. 

One or two other unsuccessful efforts were made to get 
the matter prepared for publication, and time passed on. 

vii 



Vlll 



Foreword 



Finally about two years ago the whole matter was put into 
my hands. The original manuscript was lost, the text of the 
copy turned over to me was very imperfect, caused by the 
manner in which it had been made, numerous references were 
incorrect, and, having gone through fire and water, the paper 
itself had rotted. 

Now at last the labor is completed and at the end of seven- 
teen years after the author's death his book is issued from 
the press. 

It is sent forth with the hope that the vital question he 
was able to discuss only in part may awaken the interest its 
seriousness and importance deserve. 



^^V^^^^^-^^' 



'Cotesworth," Carrollton, Mississippi. 




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SKETCH OF THE AUTHOR'S LIFE 

James Z. George was born October 20th, 1826, in Mon- 
roe County, Georgia, the son of Joseph Warren George and 
his wife Mary Chamblis George. In his early infancy he lost 
his father. His mother having married again, the family 
moved to Noxubee County, Mississippi, in 1834, remaining 
in that part of the State some two years only, going thence to 
Carroll County, where, as boy and man, the subject of this 
sketch maintained his legal residence until his death sixty-one 
years later. 

He attended the then existing common schools of the 
South, called "old field" schools, in which was secured what- 
ever of school training he received. According to his bent he 
took every advantage the schools offered and subsequently 
augmented his store of knowledge by laborious and persistent 
study of general literature as well as that of the profession of 
law which he adopted. He remained a diligent student to the 
end of his life. 

When about twenty years of age he enlisted as a soldier 
on the breaking out of the Mexican War, was enrolled as a 
private in the First Regiment of Mississippi Volunteers com- 
manded by Colonel Jefferson Davis, and participated in the 
battle of Monterey, where he showed that courage and devo- 
tion which always characterized him in every field of en- 
deavor. At the time of his death his was one of the three 
names remaining on the rolls of Congress of all those who 
had fought in the war with Mexico. He took great pride in 
drawing his pension of $8 a month, which he handed over 
every quarter "to a trustee, regularly appointed by the courts 
in his county for that purpose, to give to the poor widow of a 
soldier of the Mexican war." 

On his return from Mexico he completed his interrupted 
study of the law and was admitted to the Bar a few months 
before he became of age, his minority disabilities having been 
previously removed for another purpose. At the same time 

ix 



x Sketch of the Author's Life 

he was married to Miss Elizabeth Young of Carrollton, tak- 
ing out his license to practise law one week and his license to 
marry the next. 

His young wife's brother-in-law, Judge William Cothran, 
already well established in the profession, immediately ad- 
mitted him to partnership and brought him at once into con- 
tact with opportunity — in waiting for which so many young 
lawyers in these days are obliged to eat out their hearts. 

In a very short while he was found giving marked evi- 
dence of that peculiar adaptability for the law which in no 
long time made him, if not the most, one of the most effective 
practitioners in the State. "Whether measured by his suc- 
cesses or by the skill, pertinacity, and power with which he 
prepared and conducted his causes, great and small, as a prac- 
titioner he was unsurpassed." 

In 1854 he was elected Reporter of the Supreme Court of 
Mississippi, then known as the High Court of Errors and 
Appeals, and was reelected in i860. In all he published ten 
volumes of Reports, as well as a Digest of all the Reports of 
the Decisions of that Court down to 1870. Their complete- 
ness and the rapidity with which they were prepared in the 
midst of other absorbing professional employments consti- 
tuted in the minds of his brethren of the Bar a most remark- 
able achievement. 

Of these several works General E. C. Walthall, who was 
more or less closely associated with Senator George during 
the greater part of the latter half of the nineteenth century, 
and who served with him in the United States Senate, said : 
"From the careful and discriminating examination of which 
these books give evidence on every page, it would be inferred 
that their preparation was the author's sole employment, when 
in fact they were issued amid the exactions of a varied and 
extensive practice, which took him much from home, and 
when private interests claimed much of his attention. In these 
reports, as in the digest of all the Mississippi decisions by 
which he ... . lightened the labors of the profession, we see 
the proofs of that capacity for constant and effective labor 
with which our late associate was as liberally endowed as any 
man I ever knew. This Digest, though prepared after the 
close of the war and under the disadvantage incident to four 
years of interruption in the habits of a student's life, is yet a 



Sketch of the Author's Life xi 

model of its kind. In thoroughness and orderly arrangement 
it is unsurpassed, though the work was done while the courts 
in which the author was an active practitioner were perplexed 
with a vast variety of novel and difficult questions arising out 
of the results of the war and when there were many distract- 
ing claims upon his attention." 

J. Z. George was a member of the Mississippi Convention 
of 1 86 1 which passed the Ordinance of Secession and voted 
for and signed that Instrument. He felt it to be his duty to 
do what lay in his power to make the Ordinance effective and 
at once enlisted for service in the field. Notwithstanding the 
fact that the soldier's life did not particularly appeal either to 
his disposition or taste he never hesitated for a moment when- 
ever he felt that his duty to the State called for his service in 
field and camp. And while he was never a distinguished 
soldier his service was marked by the same courage and de- 
votion that characterized him everywhere. 

He was captain of a company in the 20th Regiment Mis- 
sissippi Volunteers; was captured at Fort Donelson and con- 
fined seven months as a prisoner on Johnson's Island; after 
his exchange and release the Governor of Mississippi ap- 
pointed him Brigadier General of State troops because of the 
condition of his health; as soon as that was sufficiently re- 
stored he raised the 5th Regiment of Mississippi Cavalry and 
was made its colonel. In his very first battle after his return 
to the front he was captured again while leading a charge and 
was once more imprisoned on Johnson's Island. 1 There he 
was detained for nineteen months, not being released for more 
than two months after Lee's surrender, and so spent in prison 
something over half of the whole war period. 

During his confinement he occupied his leisure in teaching 
a class at law, some of whose members subsequently attained 
prominence in the profession both in Mississippi and in other 
States. 

His lot in prison was rendered less hard by the kindness of 
his publishers, the Messrs. Johnson & Company, law publish- 
ers, of Philadelphia, who advanced him money — paid back 
after the war — by which means he was able to mitigate the 

1 It is interesting to know that Colonel George's pistol and sword 
taken from him at the time of his capture have been recently re- 
turned after the lapse of nearly fifty years. 



xii Sketch of the Author's Life 

privations of some of his less fortunate fellow-prisoners as 
well as make his own situation more tolerable. 

Upon his final release he returned to his home and as 
early thereafter as was practicable resumed the practice of 
his profession and was soon on his way to restore his shat- 
tered fortunes. 

Under a certain friendly pressure from some of his friends 
among the disheartened planters and in order to help them he 
began to invest his gains in the rich lands of the Yazoo Delta 
which, under the rapacity of the Reconstruction Governments, 
were greatly reduced in value, not being appreciably higher 
than the taxes remorselessly exacted of the impoverished own- 
ers. While others lost heart he felt sure that such a condition 
of things would not be allowed to continue for any long 
period of time among a people capable of self-government 
and accustomed to control the conditions of their own life. 
His confidence and wise foresight made him most abundant 
returns in later years. 

In the latter part of 1872 he formed a partnership with 
Honorable Wiley P. Harris of Jackson, then looked upon as 
the ablest and best equipped lawyer in Mississippi, and moved 
his residence to the Capital early in 1873. 

Of the law firm thus formed General T. C. Catchings, a 
Member of Congress for many years and himself a lawyer of 
conspicuous ability, has said : "It is my deliberate judgment 
that the law firm of Harris & George was as able as any that 
ever existed in any age or any country. My acquaintance with 
both of its members was intimate, my observation of their 
methods and struggles was almost constant, and I unhesitat- 
ingly affirm that in my opinion they had both reached the very 
summit of professional excellence and power." 

The year 1875 was for Mississippi "perhaps the darkest 
period in the era of reconstruction." In the political campaign 
of that year General George was made chairman of the State 
committee by a Convention of the Democratic and Conserva- 
tive people. He won a great victory, and rendered a great 
service to the country. In that very critical period when the 
issues involved were vital to the civilization of the South he 
by his "wise leadership, backed up by strong support," and by 
using every method political genius could devise, enabled the 
people to overthrow the fatal combination of negro, carpet- 



Sketch of the Author's Life xiii 

bagger and scalawag, under whose disastrous maladministra- 
tion they had suffered so long, and to triumphantly restore to 
themselves the control of their political existence. 

For months the chairman "laid aside his private business 
and gave all of his time and talents, and freely of his money, 
to the control and direction" of this ever-memorable cam- 
paign. "With a patience that knew no bounds, a discretion 
that was the marvel of his friends, a diplomacy which was 
beyond exhaustion, and a courage and grim determination 
that inspired all who came in contact with him, he organized 
his forces, and led them to a victory which was beyond any 
dreamed of by few except himself. The Legislature which 
assembled in the following January was overwhelmingly 
Democratic, and immediately set to work to undo the exas- 
perating evils which had been wrought by the alien and hybrid 
government" which came near ruining the State. 

The conduct of the campaign attracted the attention of the 
entire country, and was subsequently investigated by the Sen- 
ate of the United States, whose committee, a majority being 
composed of Senators not averse to finding that corrupt meth- 
ods had been resorted to in order to overthrow the reconstruc- 
tion government, after most diligent and not very friendly 
search failed to find anything on which to base an effort to 
overturn the result. 

When the Legislature came to elect a United States Sena- 
tor, General George was put forward and very strongly sup- 
ported by a most formidable following, who felt that the force- 
ful man whose wise leadership had made it possible to elect a 
Democratic Senator should have the honor bestowed upon 
himself. But because of the peculiar situation which existed 
at the time it was deemed more prudent to send another dis- 
tinguished Democrat to the Senate, and, after consultation, 
both General George and his friends concluded not to press 
his candidacy any further. His name was withdrawn from 
the consideration of the caucus before the first vote was taken. 

In 1879 he was appointed by Governor John M. Stone to 
be Judge of the Supreme Court for a term of nine years and 
"his associates conferred on him a rare distinction by choos- 
ing him Chief Justice immediately on his accession to the 
bench." He remained in that position something less than 
two years, but "left his impress upon the judicial annals of the 



xiv Sketch of the Author s Life 

State in important opinions marked by his characteristic thor- 
oughness, lucidity, and thought." 

In 1880 the Legislature of the State elected Judge George 
to the United States Senate for the term beginning March 4, 
1 88 1. Resigning from the bench in February, 1881, and tak- 
ing his seat in the Senate on March 4th, he began that dis- 
tinguished Senatorial career which ended only with his life, 
more than sixteen years later. 

"Senator George .... was heard upon every important 
question which attracted the attention of the country while he 
was a member of the Senate." No important question was 
"discussed in the Senate from the day of his admission into it 
that did not receive the benefit of his thought, experience and 
argument." It is not my purpose to follow in detail the ser- 
vices he rendered the Nation and the State during the sixteen 
years he sat in the Senate as a Senator from Mississippi. 
Only a few of those most conspicuous and valuable will be 
named. 

He was the only Democrat among the five Senators who 
beat the Sherman Anti-Trust Law into the final shape in which 
it was passed by both Houses on June 20, 1890. 

However, it should be added that Senator George was the 
author of the following provision which Senator Sherman 
offered in the Senate on March 25, 1890, to be incorporated in 
the first section : 

"Provided, That this act shall not be construed to apply 
to any arrangements, agreements, or combinations between 
laborers made with the view of lessening the number of hours 
of labor or of increasing their wages, nor to any arrange- 
ments, agreements, or combinations among persons engaged 
in horticulture or agriculture made with the view of enhancing 
the price of agricultural or horticultural products." 

This was adopted in Committee of the Whole, but the 
Senate did not accept it and so it failed to become a part of 
the Anti-Trust Law. 

Twenty-three years later this provision in its spirit and 
purpose was incorporated in the Sundry Civil Appropriation 
Bill of 1913, and was approved by President Wilson. 

If not a more valuable yet a more conspicuous service ren- 
dered by him was the "Report of the Minority of the Judiciary 
Committee of the United States Senate on the Constitutional 



Sketch of the Author s Life xv 

Questions Involved in the Bill to Provide for Inquests under 
National Authority," which he wrote. It was presented to the 
Senate February 25, 1887. The Bill was at last defeated, and 
no serious attempt to interfere with elections in the South was 
repeated. 

Of this Minority Report Senator O. H. Piatt, a Republi- 
can Senator from the State of Connecticut, said : "I do not 
think that I have ever seen the doctrine which that school of 
lawyers hold so ably set forth as in the minority report sub- 
mitted by Senator George upon the bill to provide for national 
inquests. . . . 

"He may have been called a follower of John C. Calhoun, 
but I believe, Mr. President, that Mr. Calhoun never stated 
the doctrine that the Constitution conferred upon our Govern- 
ment only certain delegated and specific powers with such 
force, ability and clearness as was stated by Senator George in 
that report. I believe that had he lived in the days of Cal- 
houn he would have been esteemed certainly as great a Sena- 
tor and as great a man as was Calhoun." 

After the stupendous struggle of 1875 which resulted in 
restoring to the white people of Mississippi the control of their 
affairs, they were able to maintain it year after year, but ex- 
posed always to the same inimical forces which were so hardly 
overthrown in that memorable campaign. A revision of the 
existing constitution was seen to be necessary in order to 
place the maintenance of that control on a more stable foot- 
ing. The project of calling a convention for that purpose was 
championed by Senator George. In this he was opposed by 
not a few of the ablest men of the State who believed it to be 
impossible to achieve the end sought, and among these were 
the other two of the three most conspicuous and powerful 
leaders of public opinion to whom the people looked for po- 
litical guidance. Nevertheless, confident of his own judgment 
and with characteristic courage when convinced that he was 
right, Senator George threshed out the question before the 
people and won. The convention was held at the Capital in 
1890 and he sat in it as a member from the State at large. 

On this matter I quote from Senator Turpie of Indiana: 
'/Some time before Senator George left Washington on this 
service he had, after a long reflection, and upon great consid- 
eration, drafted a proposed clause in the new constitution 



xvi Sketch of the Author s Life 

upon the right of suffrage. This draft he submitted, for in- 
spection and examination, to a few of his Senatorial col- 
leagues, upon the single question of its constitutionality, 
whether there was anything in its terms in conflict with the 
Constitution of the United States. Receiving for answer, 
without dissent, that the clause in question was not in conflict 
with the Federal Constitution, he carried the draft of it with 
him upon his journey home, and at the proper time offered it 
as a section in the new constitution. It was adopted, after full 
debate, in very nearly the text and terms of the original draft, 
and is now a part of the organic law of the State. 

"His prolonged and laborious service in the Senate had 
been largely devoted to questions nearly akin to the suffrage 
clause. Year after year he had thought and spoken concern- 
ing the force bill and other methods then proposed of Federal 
intervention with the election systems of the Southern States 
and upon the still broader theme of inter-race relations. Al- 
ways his utterances had been without threat, without menace, 
earnest, sincere, but temperate, considerate, devoid of violence. 
His conduct had been that of the statesman, that of the phil- 
anthropist and the philosopher. He purposed good for all. 
good for both races, white and black, but especially he kept 
faith with those of his own race and lineage. He was not 
willing to abandon the claim of his own race to a certain po- 
litical supremacy. He thought this was an indispensable ne- 
cessity for the welfare of both races. At last the opportunity 
came to him, as the author of this special provision on the 
subject of suffrage, to formulate this policy in the law of his 
own country. 

"The most beneficent consequences have resulted from his 
labors. There is now a stable, firm, unbroken pacification of 
the government in his State. Civilization and social order 
have been reestablished. The former disastrous conditions of 
riot, confusion, and bloodshed have ceased. All classes and 
colors are at rest. Dissent has been merged into accord and 
satisfaction. What he wrought in this magnificent domain 
for human progress and happiness has not died with him. The 
future generations of that historic Commonwealth will say 
of him in the years yet to be, Senator George gave to Missis- 
sippi and to all the inhabitants thereof the priceless boon of 
peace." 



Sketch of the Authors Life xvii 

"In the session of the United States Senate next succeed- 
ing its promulgation this constitution," says General Catch- 
ings, "was violently and relentlessly assailed. I know of noth- 
ing in the annals of Congress at all to be compared with Sena- 
ator George's defense of it on the floor of the Senate. His 
adversaries were literally overwhelmed by his skill in debate, 
his masterful logic, and the infinite wealth of his learning. 
Brushing aside almost contemptuously the insinuations, in- 
nuendoes, and implied charges so copiously indulged in, he 
boldly challenged them to indicate in what particular the State 
of Mississippi had transcended its powers, or to point out so 
much as a single clause in the constitution adopted by it which 
was in contravention of the Fourteenth and Fifteenth Amend- 
ments of the Federal Constitution. No answer came, and, so 
far as the United States Senate is concerned, the attack upon 
Mississippi's constitution has never been renewed from that 
day to this." 

In framing that constitution Senator George has been 
generally accorded the largest measure of responsibility. And 
in an opinion delivered by the Supreme Court of the United 
States not long after the Senator's death the validity of that 
constitution was expressly affirmed. 

As the time approached for Senator George to go for a 
third election before the Legislature which would convene in 
January, 1892, the entire State was agitated over what was 
called the subtreasury plan, a scheme temptingly put before 
the farmers, under the auspices of the Farmer's Alliance, as a 
measure for their especial relief. It attracted the keenest at- 
tention in many Southern and Western States and was made 
the leading issue of the campaign in Mississippi. 

Senator George was known and recognized as the great 
friend and champion of the farmers and they expected him 
to go with them in advocating the scheme. To oppose it 
seemed to invite defeat, and more than one public man held 
his peace. But when Senator George was asked his opinion 
and his support was solicited he published a powerful letter 
declaring the plan to be both illusory and unconstitutional 
and that he would oppose it. He canvassed the entire State 
with such aggressive power as not only to defeat the scheme 
in Mississippi, but to "utterly destroy it root and branch in 
every section of the country where it had found support." 



xviii Sketch of the Author s Life 

The canvass attracted wide-spread attention, and the interest 
commanded by the courage and skill which fought and con- 
quered the delusion was universal. His overwhelming election 
immediately followed. 

Something like three years before the expiration of this 
his third term in the Senate Senator George announced that 
he would not offer himself for a fourth election, but would 
retire to private life at the end of the term he was serving, 
feeling that the time remaining, after having attained the 
three-score and ten years he would then have reached, would 
be better employed in another way if he should be freed from 
the vexations of public office. For his purpose he needed more 
continuous leisure than he felt he could honestly command if 
he continued to hold his place in the Senate. During the sev- 
eral previous years he had severely taxed his great strength 
in preparing for ultimate publication this work which is just 
now issued from the press in incomplete form. He intended 
to write a third and concluding part in which he hoped once 
for all to demonstrate the unconstitutionality of that portion 
of the reconstruction legislation which interferes with the un- 
doubted right of the State to regulate the suffrage. 

It is greatly to be regretted that it was not possible for 
Senator George to give to the country a considered discussion 
of this great question. But before the contemplated period of 
his approaching leisure had arrived he was laid low in death, 
eighteen months before his term in the Senate would have 
closed. 

In Mississippi City, on the coast of the State he loved and 
served so well, he passed from life in this world on the 14th 
day of August, 1897, being not quite 71 years old. On the 
17th day of the same month in the town of Carrollton he was 
buried from the Baptist Church, of which in his final years he 
was a member. 

Senator George once said of another distinguished Missis- 
sippian what was even more true of himself : "He knew the 
people; he mingled and associated with them; he was one of 
them. He knew their thoughts, their wishes, and their aspira- 
tions. He also knew their troubles and trials — their hin- 
drances to success in life. He sympathized with them in their 
joys and their sorrows. He believed they were capable of self- 
government. He believed they knew their own interest. He 



Sketch of the Author s Life xix 

had faith that in the long run they would be, must be, right. 
. . . Having this faith in them, he was accustomed in forming 
his judgment on public measures to give a large consideration 
to the opinions of the people." 

Another has said of him : 

"It was his pride that he sprang from the people and theirs 
that he rose so high. . . . They were grateful for his good 
offices and he for their approval and support. He made their 
cause his own, and it was like him to espouse and urge it with 
all the intensity of his nature." 

I cannot more fitly conclude this brief sketch of the life of 
one whose nature was as simple as his career was great than 
by quoting the words of his distinguished colleague, General 
Walthall : 

"Proud as he justly was of his name and fame as a lawyer, 
soldier, judge and Senator, and careful ever to guard them, 
if his epitaph were limited to a single sentence most accordant 
with his preference, I am not singular in the belief that 'A 
friend of the people' would be inscribed upon his tomb." 



^^^tUft^Z^t^^€^ 



c 



Guatemala, January, 19 15. 



INTRODUCTION 

In contributing an introductory note to the present vol- 
ume, I yield to the request of Dr. Leavell, by whom the pref- 
ace is written. The extent of my acquaintance with the 
author, the late Senator George of Mississippi, would scarcely 
justify me in offering to connect my name with the publica- 
tion of his work. It happened, however, to be my fortune, 
while he occupied a seat in the United States Senate, to see 
something of his labors, to observe the high ability and integ- 
rity which he brought to the consideration of public questions, 
and also to appreciate the strong human qualities and attach- 
ments which, although they came little to the notice of the 
general public, peculiarly endeared him to his friends. His 
colleague, the late Senator Piatt of Connecticut, a most com- 
petent judge, has borne testimony to the extraordinary ability 
which characterized his minority report on the bill to provide 
for Inquests under National Authority. It is not going too 
far to say that the same ability and earnestness generally 
characterized whatever he did. His understanding was both 
sure and profound. His premises granted, he reached his con- 
clusions by an unerring logic. United with this gift was an 
unusual capacity for labor, and a conscientious care that knew 
no weariness. 

Senator George's exposition of constitutional questions 
naturally attracted wider attention than did most of his other 
public discussions, but he manifested no less ability in dealing 
with questions of a different order. In the debate on the un- 
ratified fisheries treaty with Great Britain, which took place in 
the summer of 1888, he bore an important part. The subject 
was entirely new to him, but it may confidently be affirmed that 

xxi 



xxii Introduction 

there was no speech made in the course of the long and 
exhaustive controversy that exhibited a more thorough inves- 
tigation of the subject, a fuller comprehension of its history 
and legal relations, or a more candid treatment of it than 
did his. 

While our author marshalled his facts and his arguments 
with logical precision, he habitually expressed himself accu- 
rately, forcibly and often with singular felicity. These quali- 
ties he exhibited even in writings entirely devoid of any 
element of popular interest or excitement, such as his digest 
of the decisions of the Supreme Court and of the High Court 
of Errors and Appeals of Mississippi, which was published in 
1872. This work, which was produced in the course of five 
years in the intervals of absorbing professional pursuits, he 
declared to have been a labor of love. This circumstance 
accounts not only for the exceptional excellence of the per- 
formance, but also for the distinct and marked personal 
element in it. This trait may be said to have given to all his 
work a certain characteristic. His heart as well as his mind 
entered into his task. Just as the encouragement and com- 
mendation of his brethren at the bar led him to prosecute to 
completion his digest, so, when he reached the end of his 
labors, his feelings led him to give to it an additional personal 
flavor by dedicating it to an old companion in arms. This 
dedication I have never heard mentioned ; but, having chanced 
to see it on the first occasion when I made use of the volume, 
I was so much struck with its simple eloquence, and its depth 
and tenderness of feeling, that it has ever since occupied a 
place in my recollection. It reads as follows : 

TO THE MEMORY OF 

FRANCIS MARION ALDRIDGE, 

WHO FELL AT THE BATTLE OF SHILOH, 

THIS WORK IS DEDICATED. 

A profound lawyer — a pure and an honest man — a firm and 
upright patriot; he offered his life, and its rich and varied gifts, to 
the cause of his native land. 



Introduction xxiii 

That cause was to him a faith — and its followers, brothers; 
and no one was more devoted to its fortunes than he. 

Our brethren of the Bar, in this as in all times past, were the 
stern advocates of freedom, and they staked all upon the issue of 
that cause, in the bloody arbitrament of battle. Our heroes were 
vanquished, and the victor is now the judge. 

As misfortune endears the sufferer, so he who falls in battle 
in the defence of his convictions, bears thenceforth a charmed 
name. 

To that cause, which bound up my own most cherished sym- 
pathies, and to my professional brethren, who bore so large a share 
of its burdens, I desire to place the expression of my attachment 
and admiration upon this record, frail though it may be. 

"It is a cause, and not the fate of a cause, which is a glory." 

All those who, like Aldridge, whether they fell or survived, 
gave their best efforts to their country, are enshrined in my recol- 
lection; but I here select his name, not because it is the highest or 
the brightest amongst them all, but because it was to me the best 
beloved. 

In the sentiments expressed in this dedication may be 
found the key to the present work. Senator George was 
convinced that the struggle between the North and the South 
was to be regarded as a contest over the principle of the bal- 
ance of power. Candidly admitting (p. 52) that the main 
purpose of the South in advocating the annexation of Texas 
was to increase "its waning power," he maintains that the 
North, in opposing the annexation, was animated by an 
antagonistic design. Whether the reader shall agree or dis- 
agree with the contention that the question of the balance 
of power rather than that of slavery was the fundamental 
cause of the conflict, it serves to denote what the author means 
when he speaks of those who sustained the cause of seces- 
sion as being the advocates of freedom. The contest being, 
as he contended, in its essence a struggle for political power, 
the South, according to this view, in supporting what it con- 
ceived to be its rights under the Constitution, was asserting 
the cause of political freedom. 

Although Senator George strenuously maintains on this 
ground the justice of the Southern cause, he is yet ready to 
concede that the passions of the hour were not confined to one 



xxiv Introduction 

side. Referring to the debates on the Wilmot Proviso and 
other measures associated with the controversy as to the ex- 
tension of slavery, he remarks (p. 56) upon the "passion and 
heat of the debates" and observes that "there seemed to be 
insanity on both sides with reference to the Territories." His 
present argument is intended as an appeal to the calm and 
deliberate judgment after the passions of the hour have sub- 
sided and the embers of controversy have ceased to glow ; and 
as such it will be accepted and pondered by the reader in a 
fair and dispassionate spirit. This is what the author obvi- 
ously desired ; and he would have asked for nothing more. 



New York, March 10, 191 5. 




THE POLITICAL HISTORY OF 
SLAVERY IN THE UNITED STATES 

BOOK I 



CHAPTER I 

NEGRO SLAVERY AT THE TIME OF THE FORMATION OF THE 
CONSTITUTION OF THE UNITED STATES 

In the present aspect of our affairs, — that is, considering 
the jealousies and even the animosities that are becoming more 
and more intensified between the North and the South, as well 
as the disposition that is ever increasing in the stronger section 
to dominate the weaker, — it is becoming necessary to think 
over calmly and seriously the causes that have produced these 
evils, and to ascertain, if we can, the remedy, if remedy 
there be. 

It will not be denied that the Federal Constitution was 
formed by the voluntary action of the several States, and that 
in the beginning each State was free to join the union by a 
ratification of the Constitution or to remain a free, separate, 
sovereign, and independent State by rejecting it. 

Different interests and diverse aspirations in the several 
States were manifested in the Federal Convention of 1787. 
It was then noted that the main divergence would be marked 
by lines that separated the Northern States from the South- 
ern. The Northern States were commercial and the Southern 
agricultural. Because of this difference in pursuits arose di- 
versity of interests and, as a consequence, inharmonious and 
contradictory views in relation to the powers to be granted 
to the Federal Government. But the greatest cause of diver- 
sity and dissension grew out of the institution of slavery. 
When this is stated only a half-truth is told. That slavery 
was then, and has been since, the most prominent of all causes 
of dissension is true; but it was not so much slavery per se 
as that diverse views in relation to that institution became the 
occasion of marking more distinctly the division that naturally 
grew up with respect to other issues. 

At this era, when slavery has been abolished throughout 
the world and is condemned by the consensus of civilized na- 

3 



4 The Political History of Slavery in the United States 

tions, it is difficult to appreciate fully the very different status 
which that institution occupied in past eras of human history. 
Slavery and traffic in slaves are older than the records of 
human society. In Greece slavery antedated the earliest tra- 
ditions ; the father of the Jewish nation was a slaveholder and 
a purchaser of slaves. 1 

Except in Australasia, slavery has prevailed in every por- 
tion of the globe : the Saxon even carried it in its most re- 
pulsive form into England. It was practised by all religions ; 
both the Christian and the Mohammedan indulged in it. The 
latter left no alternative to Christian captives but apostasy or 
servitude, and Christians in return treated infidels in the 
same way. 2 

The Moors, after the conquest of Granada and their sub- 
sequent expulsion from Spain, in the latter part of the fif- 
teenth century, and almost contemporaneously with the dis- 
covery of America, settled on the southern shores of the Medi- 
terranean in North Africa and engaged in enslaving Chris- 
tians. 

And the Christians, naming all Africans "Moors," en- 
slaved them in return. Yet Negro slavery is not the invention 
of the white man, for the earliest accounts of black men attest 
that Negro masters held black men of their own race as 
slaves and sold them to others. 8 There were Negro slaves 
in Greece and Rome. 4 

In 990 a. d. the slave trade was opened by the Moors in 
Central Africa. About the middle of the fifteenth century 
there seems to have grown up a prejudice against enslaving 
Africans as such, and one Gonzales, having imported into 
Europe Africans that were merely Moors, was commanded 
to return them, which he did; and the Moors gave him as 
ransom, not only gold, but black Moors, with curled hair, and 
thereupon Negroes became objects of commerce. 5 

Not long after the settlement of Virginia Negro slaves 
were brought here, and even the slavery of whites was per- 
mitted for a time in Virginia and New England. "Not the 

1 Bancroft's History, Vol. I, p. 159. 

2 Ibid., p. 161. 
' Ibid., p. 164. 
4 Ibid., p. 165. 
Ibid., p. 166. 



Negro Slavery at Time of Formation of Constitution $ 

Scots only," says Bancroft, "who were taken on the field of 
Dunbar were sold into servitude in New England, but the 
Royalist prisoners taken at the battle of Worcester." * The 
leaders of the insurrection of Penruddock were shipped to 
America for sale as slaves. 

Slavery existed in all the American colonies at the time of 
the Declaration of Independence. There had been before that 
date slavery of whites, as we have seen, and also slavery of 
Indians, as well as of Africans. But in the main the slavery 
of whites had ceased at that date. Vermont, however, in her 
constitution of 1777, after declaring the "inherent and un- 
alienable" right of liberty in all men, who were also declared 
to be born "equally free and independent," provided further : 
"Therefore, no male person born in this country or brought 
from over sea ought to be holden by law to serve any person 
as a servant, slave, or apprentice after his arrival at the age 
of twenty-one years, nor female in like manner after the 
arrival at the age of eighteen years, unless they are bound by 
their own consent, after they arrive at such age, or bound by 
law for the payment of debts, damages, fines, costs, or the 
like." 

While slavery was recognized in all the colonies as a mat- 
ter of purely domestic concern, it was at an early day made 
the subject of protection by interstate compact. 

In 1643 a. d. a Confederacy was formed of four New 
England Colonies, — Massachusetts, Plymouth, Connecticut, 
and New Haven. 2 The articles of this New England Con- 
federacy not only provided for the return of the fugitive 
slave, but also classed persons among the spoils of war and 
doomed captured men to slavery; and as early as 1637 Negro 
slaves were introduced into New England from Providence 
Isle. 

In 1626 Negro slaves were introduced into New York, 
being brought by way of the West Indies and directly from 
Guinea. And Bancroft adds : "That New York was not a 
slave State, like Carolina, is due to climate and not to the 
superior humanity of its founders." 3 

The importation of Negroes into New Jersey was encour- 

1 Bancroft's History, Vol. I, p. 175. 

2 Ibid., p. 420. 
8 Ibid. 



6 The Political History of Slavery in the United States 

aged by a present of seventy-five acres of land for each able- 
bodied slave imported. 1 

In Pennsylvania William Penn took care that there should 
be an agreement that the whites should love the red man, but 
he himself employed and owned Negro slaves. He chartered 
and encouraged a society of traders that agreed that after 
fourteen years' service the negro slave should remain under 
the severe conditions of adscript of the soil. 2 

At a later day Penn attempted to legislate, not for the abo- 
lition of slavery, but for the sanctity of marriage among 
slaves and for their personal safety. The latter object was 
effected. But the former, — sanctity of marriage, which would 
have been the forerunner of family life and freedom, — was 
defeated. 3 

In his will he directed that his own slaves be emancipated, 
but his direction was not observed by his son, and it seems 
there was no law in Pennsylvania that could compel him to 
do so ; if there was, public opinion in favor of slavery was so 
strong that the law could not be enforced. 

Although the slavery of whites and Indians was at one 
time tolerated in the Colonies, it was for obvious reasons dis- 
continued. There was a natural repugnance to the slavery of 
one man to another. This sentiment secured the freedom of 
the whites, while the red man was never a profitable slave, and 
that fact secured his freedom. Bancroft says : "There is 
not, — in all the Colonial legislation of America, — one law 
which recognized the rightfulness of slavery in the abstract. 
The real question at issue was from the first, not one of sla- 
very and freedom generally, but of the relations between the 
European and African races." The Englishman in America 
tolerated and enforced, not the slavery of man, but the slavery 
of the man "who was guilty of a skin not colored as his own. 
In the skin lay the unexpiated and, as it was held, the inexpi- 
able guilt. To the Negro whom the benevolence of his master 
enfranchised the path of social equality was not open." 

Yet it was not the mere color of his skin as color that 
constituted the reason of his enslavement, and the denial to 
him, when free, of social rights and political power, but it was 

1 Bancroft's History, Vol. I, p. 420. 

2 Ibid., Vol. II, p. 403. 
8 Ibid. 



Negro Slavery at Time of Formation of Constitution 7 

because the color was invariably accompanied by other marks, 
— physical, moral, and mental, — that caused this discrimina- 
tion against him. For the same historian remarks : "The 
natural increase of this prolific race, combined with imperfect 
development of his moral faculties, gave to human life in the 
eyes of man himself an inferior value. Humanity did not ex- 
pend itself on the individual, or the family, or even on the 
nation." The Negro was "gross and stupid, having memory 
and physical strength, but undeveloped in the exercise of 
reason." 

And on a later day Mr. Lincoln declared there were 
"physical differences between the two races which would for- 
ever forbid them living together on terms of political and 
social equality." 

However this may be, it is a fact that at the date of the 
birth of our country, July 4, 1776, the Negro was a slave, not 
only in every one of the Colonies, but in his own native land 
and in every civilized country. But, notwithstanding all the 
States were slaveholding at the time of the Declaration of In- 
dependence, and all but one remained so at the time of the 
meeting of the convention to frame the Federal Constitution 
in 1787, it was foreseen then that slavery would cease to exist 
in the Northern States. It was not, as Bancroft remarks, su- 
perior humanity, but climate that fixed the status of States as 
to slavery. The physical constitution of the negro "directed 
his home in the New World toward the sun. Even the 
climate of Virginia was too chill for him. His labor, there- 
fore, increased in value as he proceeded south, and hence 
the relation of master and slave came to be eventually a 
Southern institution." 

The result was an evident future event at the date of 
the convention. Hence, differences arose in that body as 
to questions connected with slavery. In the Congress of 
the Confederation each State had an equal vote, and this 
rule was also observed in the deliberations of the conven- 
tion. 

This rule was not satisfactory to the larger States. Taxa- 
tion, or rather contribution to the general fund under 
the Confederacy, had been according to the value of land 
owned by private parties within each State. This method 
had been found unsatisfactory. All the States had had 



8 The Political History of Slavery in the United States 

equal representative power in the Congress, and this was 
also unsatisfactory. After a great deal of debate, not un- 
accompanied with threats of a refusal to join the new union, 
both these questions were finally compromised. The States 
were to be equal in the Senate and to be represented accord- 
ing to Federal population in the House. The Federal popu- 
lation was to consist of all free persons and three-fifths of 
the slaves, and direct taxes were to be apportioned on the 
same basis. Then there arose a division as to the continu- 
ance or suppression of the African slave trade. From a 
sectional point of view all these questions were regarded as 
serious, and so was the power of regulating commerce, — a 
power that the North desired to control. 

Mr. King, of Massachusetts, arguing the question of 
representation, said : "If the latter [the Northern States] 
expect some preferential distinctions in commerce and other 
advantages which they expect to derive from the connection 
[the Union], they must not expect to receive them without 
allowing some advantages in return. Eleven of the thir- 
teen States had agreed to consider slaves in the apportion- 
ment of taxation, and taxation and representation ought to 
go together." 

He was fully convinced that the question concerning a 
difference of interests did not lie where it had hitherto been 
discussed, between the great and the small States, but be- 
tween the Southern and the Eastern. For this reason he 
had been disposed to yield something in the proportion of 
representation for the security of the Southern. No princi- 
ple could justify giving them a majority. They were 
brought as near an equality as was possible. He was not 
averse to giving them a still greater security, but did not see 
how it could be done. 

The committee of detail on the 6th of August, 1787, 
reported a scheme for the Constitution. By the fourth sec- 
tion of Article VII taxation of exports was prohibited, and 
taxation by Congress of imported slaves was also prohibited. 
By section six it was provided that no Navigation Act 
should be passed except by two-thirds of each house. Upon 
this provision arose controversy and debate. Colonel Ma- 
son, of Virginia, referring to the taxation of exports, de- 
clared "he went on a principle often advanced, and in which 



Negro Slavery at Time of Formation of Constitution g 

he concurred, that a majority, when interested, would op- 
press the minority. This maxim has been verified by our 
own legislature [Virginia]. If we compare the States in 
this point of view, the eight Northern States have an inter- 
est different from the five Southern States ; and have in one 
branch of the legislature thirty-six votes against twenty- 
nine, and in the other in the proportion of eight against 
five. The Southern States have, therefore, ground for their 
suspicion." x 

Luther Martin, of Maryland, arguing in favor of the 
power to suppress the foreign slave trade, said : "As five 
slaves are to be counted as three freemen in the apportion- 
ment of representatives, such a clause would leave an encour- 
agement to this traffic." He held that "slaves weakened one 
part of the Union, which the other parts were bound to pro- 
tect; the privilege of importing them was therefore unrea- 
sonable." He further declared that the importation of slaves 
"was inconsistent with the principles of the Revolution, and 
dishonorable to the American character." 2 

Mr. Ellsworth, of Connecticut, said: "Let every State 
import what it pleases. The morality and wisdom of slavery 
are considerations belonging to the States themselves. 
What enriches a part enriches the whole, and the States are 
best judges of their particular interest." 3 

Mr. Pinckney said : "South Carolina can never receive 
the plan [the proposed Constitution] if it prohibits the slave 
trade. If the States be all left at liberty on this subject, 
South Carolina may perhaps, by degrees, do of herself what 
. . . Virginia and Maryland already have done." 4 

Mr. Sherman, of Connecticut, disapproved of the slave 
trade; "yet, as the States were now possessed of the right 
to import slaves, as the public good did not require it to 
be taken from them, and as it was expedient to have as few 
objections as possible to the proposed scheme of govern- 
ment, he thought it best to leave the matter as they found 
it. He observed that the abolition of slavery seemed to be 
going on in the United States, and that the good sense of 

1 5 Elliot's Debates, p. 456. 

2 Ibid., p. 457- 
8 Ibid. 

* Ibid. 



io The Political History of Slavery in the Vnited States 

the several States would probably by degrees complete it." * 
Colonel Mason, of Virginia, replied as follows: "This 
infernal traffic originated in the avarice of British mer- 
chants. The British government constantly checked the 
attempts of Virginia to put a stop to it. This great ques- 
tion concerns not the importing States alone, but the whole 
Union. . . . Maryland and Virginia have already prohib- 
ited the importation of slaves expressly. North Carolina 
has done the same in substance. All this would be in vain, 
if South Carolina and Georgia be at liberty to import. The 
western people are already calling out for slaves for their 
new lands, and will fill that country with slaves, if they 
can be got through South Carolina and Georgia. Slavery 
discourages arts and manufactures. The poor despise labor 
when performed by slaves. They prevent the immigration 
of whites who really enrich and strengthen a country. They 
produce the most pernicious effect on manners. Every mas- 
ter of slaves is born a petty tyrant. They bring the judg- 
ment of Heaven on a country. As nations cannot be re- 
warded or punished in the next world, they must be in this. 
By an inevitable chain of causes and effects, Providence 
punishes national sins by national calamities. I lament that 
some of our eastern brethren have, from a lust of gain, 
embarked in this nefarious traffic. As to the States being 
in possession of the right to import, this was the case with 
many other rights now to be properly given up. I hold it 
essential, in every point of view, that the General Govern- 
ment shall have power to prevent the increase of slavery." 2 
Mr. Ellsworth replied : "As I never owned a slave I 
cannot judge of the effects of slavery on character. How- 
ever, if it is to be considered in a moral light, we ought to 
go further and free those already in the country. As slaves 
also multiply so fast in Virginia and Maryland that it is 
cheaper to raise than import them, whilst in the sickly rice 
swamps foreign supplies are necessary, if we go further 
than is urged, we shal 1 be unjust toward South Carolina and 
Georgia. Let us not intermeddle. As population increases, 
poor laborers will be so plenty as to render slaves useless. 

x 5 Elliot's Debates, p. 457. 
2 Ibid., p. 458. 



Negro Slavery at Time of Formation of Constitution II 

Slavery in time will not be a speck in our country." 1 

Mr. Pinckney said : "If slavery be wrong, it is justified 
by the example of all the world. ... In all ages one-half 
of mankind have been slaves. If the Southern States were 
let alone, they will probably of themselves stop importa- 
tions. I myself, as a citizen of South Carolina, would vote 
for it." a 

General Pinckney declared "it to be his firm opinion that 
if he and all his colleagues were to sign the Constitution, 
and use their personal influence, it would be of no avail 
toward obtaining the assent of their constituents. South 
Carolina and Georgia cannot do without slaves. As to Vir- 
ginia, she will gain by stopping the importations. Her 
slaves will rise in value, and she has more than she wants. 
It would be unequal to require South Carolina and Georgia 
to confederate on such unequal terms. . . . He contended 
that the importation of slaves would be for the interest of 
the whole Union. . . . He admitted it to be reasonable 
that slaves should be dutied [taxed] like other imports; but 
should consider a rejection of the clause as an exclusion of 
South Carolina from the Union." 3 

Mr. Baldwin, of Georgia, regarded the importation of 
slaves as a local and not a national matter. "Georgia was 
decided on this point. ... If left to herself, she may prob- 
ably put a stop to the evil." 4 

Mr. Wilson, of Pennsylvania, favored the taxing of im- 
ported slaves. 

Mr. Gerry, of Massachusetts, "thought we had nothing 
to do with the conduct of the States as to slaves, but 
ought to be careful not to give any sanction to it [sla- 
very]." e 

Mr. Dickinson, of Delaware, thought it inadmissible 
upon any principle of honor and safety "that the importa- 
tion of slaves should be authorized to the States by the Con- 
stitution. . . . He could not believe that the Southern 
States would refuse to confederate on the account appre- 

1 5 Elliot's Debates, p. 458. 

2 Ibid., pp. 458-9. 

3 Ibid., p. 459. 
*Ibid. 
*Ibid. 



12 The Political History of Slavery in the United States 

hended; especially as the power was not likely to be exer- 
cised immediately by the general government." * 

Mr. Williamson, of North Carolina, thought the Southern 
States should not be members of the Union if the clause 
(prohibiting taxation of imported slaves) was agreed to. 

Rufus King, of Massachusetts, "thought the subject 
should be considered in a political light only. If two States 
will not agree to the Constitution, as stated on one side, he 
could affirm with equal belief, on the other, that great and 
equal opposition would be experienced from the other 
States. He remarked on the exemption of slaves from duty, 
whilst every other import was subjected to it, as an in- 
equality that could not fail to strike the commercial sagacity 
of the Northern and Middle States." 2 

Mr. Langdon, of New Hampshire, was strenuous for giv- 
ing the power of taxation of slaves to the General Govern- 
ment. 

General Pinckney "thought himself bound to declare 
candidly that he did not think South Carolina would stop 
her importations of slaves in any short time; but only stop 
them occasionally, as she does now. He moved to commit 
the clause that slaves might be made liable to an equal tax 
with other imports." 3 

Mr. Rutledge, of South Carolina, said : "If the Conven- 
tion thinks that North Carolina, South Carolina and Georgia 
will ever agree to this plan, unless their right to import 
slaves be untouched, the expectation is vain." 4 

Gouverneur Morris wished the whole subject to be com- 
mitted, including the clauses relating to taxing exports and 
to a navigation act. "These things may form a bargain among 
the Northern and Southern States." 5 

Mr. Butler, of South Carolina, declared that he would 
never agree to the power of taxing exports. 

Mr. Sherman, of Connecticut, said "it was better to let 
the Southern States import slaves than to part with them if 
they made that a sine qua non. He was opposed to a tax 

1 5 Elliot's Debates, p. 460. 

2 Ibid. 

* Ibid. 

* Ibid. 
6 Ibid. 



Negro Slavery at Time of Formation of Constitution 13 

on slaves imported as making the matter worse, because it 
implied they were property. He acknowledged that, if the 
power of prohibiting the importation should be given to the 
general government, it would be exercised. He thought it 
would be its duty to exercise the power." 

Mr. Randolph was for "committing in order that some 
middle ground might, if possible, be found. He could never 
agree to the clause as it stands. He would sooner risk the 
Constitution." The committal was made. Ayes: Connecticut, 
New Jersey, Maryland, Virginia, North Carolina, South Caro- 
lina, Georgia, — seven. Nays : New Hampshire, Pennsylvania, 
and Delaware, — three. And Massachusetts, absent. 

Mr. Pinckney, of South Carolina, and Mr. Langdon, of 
New Hampshire, both moved to commit section six, relat- 
ing to the navigation act. 

Mr. Gorham, of Massachusetts, did not see the propriety of 
the committal. "Is it meant to require a greater propor- 
tion of votes [than two-thirds, as the sixth section re- 
quired] ?" He desired it to be remembered that the Eastern 
States had no motive to union but a commercial one. . . . 
They were not afraid of external danger, and did not need 
the aid of the Southern States. 

Mr. Wilson, of Pennsylvania, favored committal in order 
to reduce the proportion of votes required. 

Mr. Ellsworth, of Connecticut, was for taking the plan as 
it was. "This widening of opinions has a threatening aspect. 
If we do not agree on this middle and moderate ground [two- 
thirds vote in order to frame a Navigation Act], I am afraid 
we shall lose two States, with such others as may be disposed 
to stand aloof; should fly into a variety of shapes and direc- 
tions, and most probably into several confederations — and not 
without bloodshed." 

It was committed to one member from each state. Yeas, 
nine, — New Hampshire, Massachusetts, Pennsylvania, Dela- 
ware, Maryland, Virginia, North Carolina, South Carolina, 
Georgia; nays, two, — Connecticut and New Jersey. And 
the other clauses above noted about imported slaves and ex- 
ports were sent to the same committee, consisting of Lang- 
don, of New Hampshire; King, of Massachusetts; Johnson, 
of Connecticut; Livingston, of New York; Clymer, of Penn- 
sylvania; Dickinson, of Delaware; Luther Martin, of Mary- 



14 The Political History of Slavery in the United States 

land; Williamson, of North Carolina; Madison, of Virginia; 
C. C. Pinckney, of South Carolina, and Baldwin, of Georgia. 

The committee reported as to slave importation as the 
clause now stands, except that taxation of ten dollars per 
head, as it now reads, was by the committee provided for 
by a tax not exceeding average duties laid on imports, and 
the year 1806 was recommended as the date for the end of 
prohibition of power of Congress instead of 1808. 

The committee reported also that the fifth section about 
a capitation tax and the sixth article, which required the 
assent of two-thirds of each to pass a Navigation Act, be 
stricken out. 

I have set out this debate with some fulness that it may 
be seen that in that great convention there were sectional 
jealousies and sectional interests clustering around the slave 
question, yet growing out of and connected with other great 
issues, and that these produced then a Northern and a South- 
ern difference. It will be noted that the strongest opposi- 
tion to the slave trade came from Virginia and Maryland, — 
Colonel Mason and Luther Martin denouncing it in the 
strongest terms. It will also be noted that Virginia and 
Maryland were slave-breeding States, and that slave impor- 
tation would have conflicted with the domestic industry of 
slave breeding in these States. It will also be noted that 
next to these two in the strenuousness of opposition was 
Delaware, and that Connecticut, through both Mr. Sherman 
and Mr. Ellsworth, two of the ablest men in the convention, 
was an apologist for the position of Georgia and South Caro- 
lina in favoring importation. Mr. Ellsworth went so far 
as even to insinuate that the opposition of Virginia and 
Maryland to slave importation was on account of their in- 
terests as slave breeders, and further to declare that the 
prohibition of the slave trade would be unjust to Georgia 
and South Carolina. 

He also declared that it was a matter solely for each 
State, in which opinion Mr. Gerry, of Massachusetts, con- 
curred, while Rufus King declared it should be looked at 
purely from a political and not from a moral standpoint. 

It will be noted also that Colonel Mason, while enter- 
taining the strongest anti-slavery views, yet saw there was 
a North and a South, and that there would be, and was even 



Negro Slavery at Time of Formation of Constitution 15 

then, a conflict in interest between them. It will also be 
noted that he complained that the North had a majority in 
the representation, and he declared it was a maxim in poli- 
tics that a majority, when interested, would oppress the 
minority. Rufus King, too, so far agreed with the reason- 
ableness of these apprehensions as to express himself to the 
effect that the difference in interest between the States did 
not lie between the larger and the smaller, but between the 
Southern and the Eastern, and that he thought it his duty 
to yield on the question of representation something to the 
security of the Southern States, and that he was willing to 
go even further, in order to give the Southern States still 
greater security. Gouverneur Morris regarded the whole 
matter, — including slavery, taxes, exports, and the Naviga- 
tion Act, — as a fit subject "for a bargaining between the 
Northern and Southern States." Mr. Gorham, of Massa- 
chusetts, felt at liberty to say "that the Eastern States had 
no motive to union but a commercial one, and that they felt 
no fear of external danger and had no need of the aid of 
the Southern States." 

And finally it will be noted that all these matters, — taxa- 
tion and prohibition of the importation of slaves, taxation 
of exports and the Navigation Act, — were referred to a 
committee of one from each State for settlement, and that 
the bargain, finally consummated, was the Constitution as it 
now stands on these points. 

Proceeding thus far, we find in the very inception of the 
Government differences on the subject of slavery, — contests 
as to representation in both Houses, based on the natural de- 
sire of the human heart for political power, whether for 
aggressive or defensive purposes, and differences as to the 
interests of States and sections, which interests could be pro- 
moted or depressed by the action of Government. 

As our business now is mainly with the slave question, 
these other matters will only be noticed as they tend to 
make that plainer. 

It has been seen that all the colonies, North and South, 
participated in the introduction of Negro slaves into the 
country. On this point it is well now to introduce an unim- 
peachable witness, though the testimony was not given for 
some years after the events we have been relating. During 



1 6 The Political History of Slavery in the United States 

the heat of the Missouri controversy in 1820, hereafter to 
be more fully set out, a petition was sent from the citizens 
of Newport, Rhode Island, against the admission of Mis- 
souri as a slave State. That petition said : 

"That slavery, as it now exists in the United States, in 
the opinion of your memorialists, can never be made a mat- 
ter of reproach to the existing Government or present gen- 
eration. It was an evil introduced into the colonies by the 
parent State, and acquiesced in to a great degree by the 
colonies themselves, in an age when the traffic in slaves was 
pursued by all nations without suspicion of its enormity. 

"The Northern colonies participated in it equally with the 
Southern, and the navigation of the New England ports, 
and particularly of this town, was employed continually on the 
African coast, in the transportation of slaves to the different 
American markets, and by means of American capital. 
There can be no reproach, therefore, cast upon our Southern 
brethren for the introduction of this evil, which, as your 
memorialists conceive, will not equally attach itself to our- 
selves and to the English Nation. We were all equally dis- 
posed to embark in the traffic, and to avail ourselves of its 
proceeds, and the guilt, if any there be, must be shared in 
an equal degree by the parties concerned." x 

Slavery of the Negro was here. The African was here 
by the equal fault of all sections and all States. That sla- 
very, though obnoxious to the principle on which our Gov- 
ernment was founded, was yet tolerated, and it was toler- 
ated, as we have seen, on account of the peculiarities of the 
Negro, both physical and moral. 

It would have been well if the warning voice of Colonel 
Mason (as we have quoted it) had been heeded in the 
formation of the Constitution, and if power had been given 
to the Federal Government to prohibit the further introduc- 
tion of Africans from the time of the inauguration of the 
Constitution instead of postponing it for twenty years. In 
that fatal twenty years there were introduced into this coun- 
try such a number of this prolific race that all thoughtful men 
must look to the future with apprehension and alarm. 

The differences of opinion concerning slavery were set- 
tled in the Federal Convention by compromise, or, as Gouv- 

1 Annals, 1st Session, 16th Congress, Vol. II, pp. 2452-3. 



Negro Slavery at Time of Formation of Constitution 17 

erneur Morris expressed it, by "bargain between the North- 
ern and Southern States." These compromises were 
founded on the concession on all sides that slavery was a 
State institution, subject to the will of each State to estab- 
lish or abolish as it should deem best in its own judgment, 
and embraced the three points of controversy : five slaves as 
three freemen in representation and taxation, the delivery of 
fugitives from slavery, and what has been stated about the 
African slave trade. 

Very early after the inauguration of the Government 
under the Constitution it was found that there was discon- 
tent as to these provisions, and also a disposition on the part 
of some of the States to evade, if not directly to disregard, 
these compromises, especially as to the representation of 
slaves. 



CHAPTER II 

ACQUISITION OF LOUISIANA 

As has been stated, the controversies on the subject of 
slavery were always connected with other questions. The 
main question was sectional political power. It will be ob- 
served that this came up on all occasions when a measure 
was before the public, upon the decision of which there 
might be an augmentation of power in one section of the 
Union, and relative diminution of power in another. And 
it will be interesting, as well as instructive, to note how the 
question of the relative powers of the State and Federal 
Governments was always decided in each section in accord- 
ance with its views in opposition to or approval of a measure 
that might detract from or add to its own power. 

When the treaty for the acquisition of Louisiana came 
before the House of Representatives for the appropriations 
necessary to pay for that Territory this fact was made mani- 
fest. 

That appropriation was opposed by a majority of the 
representatives from Massachusetts, all from Connecticut, 
and a majority from New Hampshire; though one of the 
best speeches made in favor of it was by Mr. Elliott, of Ver- 
mont. Mr. Thatcher, of Massachusetts, in opposing the ap- 
propriation, said that "The Confederation under which we 
now live is a partnership of States, and it is not competent 
to it to admit a new partner but with the consent of all the 
partners." * 

Mr. Griswold said : "Such a power [to admit new 
States from territory acquired since the formation of the 
Constitution] would be directly repugnant to the original 
compact between the States, and a violation of the principle 
on which that compact was formed. It has been already 
well observed that the union of the States was formed on the 

1 Annals, ist Session, 8th Congress, p. 454. 

18 



Acquisition of Louisiana 19 

principle of a copartnership, and it would be absurd to sup- 
pose that the agents of the parties who have been appointed 
to execute the business of the compact, in behalf of the 
principals, could admit a new partner, without the consent 
of the parties themselves." 1 This is the very essence of the 
Resolutions of 1798 and 1799. 

It was not denied that the United States could acquire 
new territory by conquest or purchase, but the opposition 
was to that provision of the treaty which provided for the 
eventual admission of Louisiana into the Union. 2 

But this ground of opposition, based on expediency, was 
clearly on the change it would effect in the distribution of 
political power. Mr. Thatcher objected that if the treaty 
went into effect it would carry from its present center a 
great portion of the population of the United States, that it 
would probably remove the seat of Government, and that it 
might dismember the Union. 

Mr. Griswold argued that "The Government having been 
formed by a union of States, it is supposable that the fear 
of an undue or preponderating influence in certain parts of 
the Union must have great weight in the minds of those who 
might apprehend that such an influence might ultimately in- 
jure the interests of the States to which they belonged; and 
although they might consent to become parties to the Union, 
as it was then formed, it is highly probable they never would 
have consented to such a connection, if a new world was to 
be thrown into the scale, to weigh down the influence which 
they might otherwise possess in the National Councils." 3 

This, it will be remembered, was on the bill to appro- 
priate money to carry out the plighted faith of the Govern- 
ment to pay for Louisiana. 

In 181 1 the question as to the admission of Louisiana 
into the Union was before Congress. Admission was op- 
posed by the great preponderance of members from New 
England. , 

Mr. Josiah Quincy, one of the ablest men in the country, 
was the leader in the contest. Louisiana was slave territory, 
and was to be admitted as a slave state. He argued that the 

1 Annals, 1st Session, 8th Congress, p. 461. 

2 Ibid., p. 463. 

3 Ibid., p. 462. 



20 The Political History of Slavery in the United States 

influence of the slave votes upon the political power of the 
eastern portion of the country "and the anticipated trans- 
mission of power to the west were subjects of great jealousy 
to some of the best patriots in the Northern and Eastern 
States at the time of the adoption of the Constitution," and 
that these patriots, if they had foreseen that the population 
beyond the Mississippi was to be brought into Congress "to 
frame our laws, control our rights, and decide our destiny, 
would not for one moment have listened to it." 

"They were not madmen," he declared. "They had not 
taken degrees at the hospital of idiocy. They knew the na- 
ture of man and the effect of his combinations in political 
societies. They knew that when the weight of particular 
sections of a confederacy were greatly unequal the resulting 
power would be abused ; and that it was not in the nature of 
man to exercise it with moderation." 

He pressed with great force the effect of the admission 
of Louisiana on the relative political power of the other States, 
declaring "that the proportion of political power subject only 
to the internal modifications permitted by the Constitution is 
an inalienable, essential, intangible right," and "that when it 
is touched the fabric is annihilated," and that "on the preser- 
vation of these proportions depend our rights and liberties." 

He spoke of the constitution as a political compact, aver- 
ring that the proportion of the political power of each sover- 
eign State constituting the Union depends upon the number 
of States "which have a voice under the compact." Like Mr. 
Griswold and Mr. Thatcher in 1803, he spoke of the States 
as "partners," and denounced the wrong of admitting new 
partners contrary to the terms of the contract, stating it was 
wholly inconsistent with the "intent of the contract and the 
safety of the States which established the association." He 
stated interrogatively, "Is there a moral principle of public 
law better settled, or more conformable to the plainest dic- 
tates of reason than that the violation of a contract by one 
of the parties may be considered as exempting the other from 
its obligations?" 

And again he said : "I am compelled to declare it as 
my deliberate opinion that, if this bill passes, the bonds of 
this Union are virtually dissolved ; that the States which com- 
pose it are free from their moral obligations, and that, as it 



Acquisition of Louisiana 21 

will be the right of all, so will it be the duty of some to pre- 
pare definitely for a separation — amicably, if they can, vio- 
lently if they must." * 

On the passage of the bill to admit Louisiana, not a mem- 
ber from New Hampshire nor Rhode Island nor Connecticut 
voted for it, and only one out of four from Vermont and 
five out of fourteen from Massachusetts voted for it. 

So at this early day we see that there was opposition to 
the three-fifths slave representation in the House of Repre- 
sentatives, as provided for in the Constitution. The jealousy 
of sectional interests and power and the determination to 
maintain this power even at the cost of a dissolution of the 
Union were also made manifest. These manifestations then 
came from the Northern States. Hereafter it will be seen 
that similar sentiments came from the South. 

These proceedings took place on the eve of the war with 
Great Britain. Before that war was over there was another 
manifestation of sectional jealousy, to which attention is now 
invited. 

Annals, 3d Session, nth Congress, pp. 524 el seq. 



CHAPTER III 



THE HARTFORD CONVENTION 



During the War of 1812 with Great Britain, discontent 
of a very violent, not to say revolutionary, character existed 
in New England, especially in the States of Massachusetts, 
Rhode Island, and Connecticut. 

The Hartford Convention met on the call of the Legisla- 
ture of Massachusetts, the invitation being directed by name 
only to the New England States. Connecticut and Rhode 
Island, through their Legislatures, accepted the call. Official 
delegates were appointed by the authorities of these States, 
and there were also delegates representing local communities 
in New Hampshire and Vermont. 

The Resolution of Massachusetts calling the convention 
provided for twelve delegates to it to "confer with delegates 
from the New England States, or any other, upon the sub- 
ject of their public grievances and concerns; and upon the 
best means of preserving our resources; and of defense 
against the enemy; and to devise and suggest for the adop- 
tion of their respective States such measures as they may 
deem expedient, and also to take measures, if they shall think 
proper, for procuring a convention of delegates from all the 
United States, in order to revise the constitution thereof and 
more effectually to secure the support and attachment of all 
the people by placing all upon a fair basis of representation." 

In the letter to the other States of the Union, sent by the 
President of the Senate and the Speaker of the House, it 
was stated that the object of the convention was to deliberate 
upon the dangers to which the eastern section of the Union 
was exposed by the war, and to devise, if practicable, 
measures of security and defense consistent with the preser- 
vation of their resources from total ruin and adapted to their 
local situation, mutual relation, and habits; and not repug- 
nant to their obligation as members of the Union. It was 

22 



The Hartford Convention 23 

also suggested that the convention inquire whether the in- 
terests of those States demanded persevering endeavors by 
each State to procure such amendments to the National Con- 
stitution as might secure to them their equal advantage; and 
also to consider the propriety of obtaining a convention of all 
the States, or such of them as might approve of the measure, 
with a view to obtaining such amendment. 

The letter concluded with an avowal of the attachment of 
the people of Massachusetts to the National Union and to the 
rights and independence of their country. 

The answer of Connecticut was contained in a report to 
the Legislature, in which complaint was made of the con- 
duct of the war. It stated that "occupying a comparatively 
small territory and naturally associating during the Revolu- 
tionary War with States whose interests were identified with 
our own interests and inclinations led us to unite in the great 
national compact, since defined and consolidated by the Con- 
stitution of the United States; that they anticipated from 
the Union the preservation and advancement of their dearest 
rights and interests; that whilst the Father of his Country, 
and other good and wise men, guided our councils, they were 
not disappointed. But the present national administration 
had formed a coalition with Napoleon, aspiring to the domin- 
ion of the world, and had left unattempted no means, how- 
ever destructive or hazardous, to aid him; that protection is 
the first and most important claim of the States on the Fed- 
eral Government, and a primary condition essential to the 
obligation of every compact between rulers and their sub- 
jects. To obtain that, as a principal object, Connecticut be- 
came a member of the National Confederacy." 

The report also stated : "They duly appreciate the great 
advantages which result from the Federal compact, were the 
government administered according to the sacred principles 
of the Constitution. They have not forgotten the ties of 
confidence and affection which bound these States to each 
other during their toils for independence; nor the national 
honor and commercial prosperity which they mutually shared 
during the happy years of a good administration. They are 
at the same time conscious of their rights and determined to 
defend them. Their sacred liberties, those inestimable insti- 
tutions, civil and religious, which their venerable fathers had 



24 The Political History of Slavery in the United States 

bequeathed to them, are, with the blessings of heaven, to be 
maintained at every hazard and never to be surrendered by 
the tenants of the soil, which the ashes of their ancestors have 
consecrated." 

The report concludes with recommending the acceptance of 
the invitation of Massachusetts as an eligible method of com- 
bining the wisdom of New England in devising, on full con- 
sultation, a proper course to be adopted consistent with our 
obligations to the United States. 

A resolution was adopted to "appoint seven delegates for 
conference with other delegates from the New England 
States for the purpose of devising and recommending such 
measures of safety and welfare of these States as may con- 
sist with our obligations as members of the National Union." 

Rhode Island, by its Legislature, accepted the invitation, 
noting that its Governor had been requested by the Legis- 
lature to confer with "our neighboring sister States," and 
appointed delegates "to confer with such other delegates as 
are, or shall be, appointed by other States upon the common 
dangers to which these States are exposed, and upon the best 
means of cooperating for our mutual defense against the 
enemy and upon such measures which it may be in the power 
of said States, consistently with their obligations to adopt, 
to restore and secure to the people thereof their rights and 
privileges under the Constitution of the United States." 

That the convention was to be solely of the New England 
States is evident, not only from the language of the call, but 
from the answers of Connecticut and Rhode Island. 

What is meant in these proceedings by a "fair basis of 
representation" in the call made by Massachusetts, and by 
measures "consistent with their obligations as members of 
the Union," will be evident from the sequel. 

The convention met on December 14, 1814, at Hartford. 
Among the delegates were the most distinguished names in 
New England, including Cabot, Prescott, Harrison Gray 
Otis, Nathan Dane, and Chauncey Goodrich. At that time 
New Orleans was threatened by the British army and fleet. 

The convention, after a session of several weeks behind 
closed doors, made a report that was drawn with great skill 
and ability. It is not deemed necessary to set out the whole 
report, but only to note some of the salient points of it. 



The Hartford Convention 25 

This report noted the difficulty of devising means of de- 
fense against danger and relief from oppression from acts of 
their own government without violating constitutional prin- 
ciples or disappointing the hopes of a suffering and injured 
people ; and it stated that the recommendation of patience and 
firmness to the distressed sometimes drives them to despair. 
"But," continues the report, "when abuse reduced to a sys- 
tem and accumulated through a course of years has pervaded 
every department of the Government, and spread corruption 
through every region of the State, and when these are clothed 
with the forms of law and enforced by an executive whose 
will is their source, no summary means of redress can be ap- 
plied without resort to direct and open resistance." 

Apologizing for not recommending this open resistance, 
the report states that the experiment of resistance, when jus- 
tifiable, cannot fail to be painful to good citizens, and that 
precedents for resistance to the worst administration are 
eagerly seized upon by those who are hostile to the 
best. 

"Necessity alone can sanction a resort to this measure, 
and it should never be extended in duration or degree beyond 
the exigency, until the people, not merely in the fervor of 
sudden excitement, but after full deliberation, are determined 
to change the Constitution. 

"It is a truth not to be concealed that a sentiment prevails 
to no inconsiderable extent that the administration has given 
such construction to that instrument and produced so many 
abuses under color of its authority that the time for a change 
is at hand." The report goes on to say that those so be- 
lieving regard the present evils as incurable and intrinsic 
under the present Constitution, and that no change can ag- 
gravate the misery of the country. This opinion may prove 
correct but the evidence is not yet conclusive that it is, and 
as measures adopted on that assumption might be irreversible, 
they submit some reflections to reconcile the people to a 
course of moderation and firmness. 

After adverting to the. once high prosperity under the 
Constitution, and to the present miseries, and expressing the 
hope that their brethren in other States may yet undergo a 
revolution in opinion, they proceed to give reasons against 
a present dissolution of the Union, as follows : 



26 The Political History of Slavery in the United States 

"Finally, if the Union be destined to be dissolved, by 
reason of multiplied abuses of bad administration, it should, 
if possible, be the work of peaceful times and deliberate con- 
sent. Some new form of confederacy should be substituted 
among these States which shall intend to maintain the Fed- 
eral relation to each other. Events may prove that the causes 
of our calamities are deep and permanent ; they may be found 
to proceed, not merely from the blindness of prejudice, pride 
of opinion, violence of party spirit, or the confusion of the 
times ; but they may be traced to implacable combinations of 
individuals with States to monopolize power and office, and 
to trample, without remorse, upon the rights and interests of 
the commercial section of the Union. Whenever it shall ap- 
pear that these causes are radical and permanent, a separa- 
tion by equitable arrangement will be preferable to an alli- 
ance by constraint among nominal friends, but real ene- 
mies inflamed by mutual hatred and jealousy, and invit- 
ing by intestine divisions contempt and aggression from 
abroad." 

The report then denies the authority of the United States 
over the militia as it had been exercised, and denies the 
power of Congress to compel the militia and other citizens, 
by forcible draft or conscription, to serve in the regular army, 
declaring "that an iron destiny can impose no harder servi- 
tude on a citizen than to force him from his home and his 
occupation to wage offensive wars undertaken to gratify the 
pride and passion of his master; that the forcible draft as 
recommended by the Secretary of War is not delegated by 
the Constitution to Congress, and the exercise of it would 
be not less dangerous to the liberties of the citizen than hos- 
tile to the sovereignty of the State; that it is as much the 
duty of the State authorities to watch over the rights re- 
served as of the United States to exercise the powers which 
are delegated." 

They then proceed to declare it to be undeniable that 
Acts of Congress in violation of the Constitution are abso- 
lutely void, but it "does not, however, consist with the respect 
and forbearance of a Confederate State towards the General 
Government to fly to open resistance upon every infraction 
of the Constitution. The mode and energy of the opposi- 
tion should always conform to the nature of the violation, 



The Hartford Convention 27 

the intention of its authors, the extent of the injury inflicted, 
the determination to persist in it, and the danger of delay. 
But in cases of deliberate, dangerous, and palpable viola- 
tions of the Constitution affecting the sovereignty of the 
State and the liberties of the people, it is not only the right, 
but the duty, of such State to interpose its authority for their 
protection in the manner best calculated to secure that end. 
When emergencies occur which are either beyond the reach 
of judicial tribunal, or too pressing to admit of the delay 
incident to their forms, States which have no common 
umpire must be their own judge and execute their own de- 
cision." 

The report then sets out nine grievances that should be 
remedied, one of which is as follows : "The admission of 
new States into the Union, formed at pleasure in the western 
region, has destroyed the balance of power which existed 
among the original States and deeply affected their inter- 
ests." 

Proceeding to enumerate certain defects in the Constitu- 
tion which should be removed by amendment, they specify 
the three-fifths representation of slaves allowed to the South- 
ern States, insisting that representation should be based on 
the number of free inhabitants. 

Concerning this matter the report states: "These [the 
Southern States] are entitled to slave representation by a 
constitutional compact. It is therefore merely a subject of 
agreement. ... It has proved unjust and unequal in its 
operation. Had this effect been foreseen the privilege would 
probably not have been demanded; certainly not conceded. 
Its tendency in the future will be adverse to that harmony 
and mutual confidence which are more conducive to the hap- 
piness and prosperity of every confederated State than a 
mere preponderance of power, the prolific source of jealous- 
ies and controversies, can be to any of them." 

The report also specifies this amendment : "No new State 
shall be admitted into the Union without the concurrence of 
two-thirds of both houses." 

"This amendment," says the report, "is deemed to be 
highly important, and, in fact, indispensable. In proposing 
it it is not intended to recognize the right of Congress to 
admit new States without the original limits of the United 



28 The Political History of Slavery in the United States 

States. ... At the adoption of the Constitution, a certain 
balance of power among the original parties was considered 
to exist. ... By the admission of these States that balance 
has been materially affected and, unless the practice be modi- 
fied, would undoubtedly be destroyed. The Southern States 
will first avail themselves of their new Confederates to gov- 
ern the East, and finally the Western States, multiplied in 
number and augmented in population, will control the interest 
of the whole. . . . None of the old States can find an in- 
terest in creating permanently an overwhelming Western in- 
fluence." 

It is not necessary to note further the amendments pro- 
posed, except to say that they propose to restrict the power 
of Congress to lay an embargo, and to interdict commerce 
and declare war without the concurrence of two-thirds of 
both Houses, except in case of invasion, — making natural- 
ized citizens ineligible to Federal office or as Members of 
Congress, prohibiting the President to be elected from the 
same State for more than two terms in succession, and mak- 
ing the President ineligible to reelection. 

The last of the resolutions recommends, — in case the 
applications named in the foregoing be unsuccessful and peace 
be not concluded, and the defense of these States be neglected, 
as has been the case, — that a new convention be called to 
meet at Boston the following June. 

The convention adjourned on January 5, 181 5, just three 
days before the great victory of General Jackson at New Or- 
leans ; and, peace having been concluded, the meeting at Bos- 
ton never took place. 

More, possibly, of the proceedings of the convention has 
been set out at this place than is consistent with a proper 
arrangement of the subject herein discussed. What we are 
now considering are the sectional jealousies and disturbances 
growing out of what is called the balance of power between 
the two sections of the Union and the slavery question as 
contributing thereto. That part of the report, as above set 
out, which admits the rightfulness of the remedy by seces- 
sion will be hereinafter considered. Now we note the other 
phases of the report, its insistence on the exclusion of new 
States, the complaint of the disturbance of the balance of 
power by such admission, and the complaint of political power 



The Hartford Convention 29 

granted to the Southern States by the three-fifths repre- 
sentation of slaves. It will be noted that the report demands 
the proposed amendment to the Constitution as to the ad- 
mission of new States as indispensable, and insists on the 
preservation of the balance of power as established in the 
beginning. 



CHAPTER IV 

THE MISSOURI QUESTION 

The war with Great Britain ended, and there was for a 
time a cessation of sectional disputes ; but in a few years came 
the application of Missouri for admission, and the same sec- 
tional jealousy was again aroused. The East and the North 
changed their position in reference to the balance of power. 
The effort now was not to preserve the balance, but to de- 
stroy it, by giving a preponderance to the North. Missouri 
was a part of Louisiana and was slave territory. To her as 
a territory slavery was allowed, and when she applied for 
admission it was as a slave State. Her first application was 
in the year 1818. In the next year an Enabling Act was 
passed. Resistance was made to her admission, not on the 
ground assumed in respect to Louisiana, — that it was a vio- 
lation of the Constitution to admit new States formed of ter- 
ritory acquired since the adoption of the Constitution, — but 
on the ground that there should be no admission of any more 
slave States. 

On December 18, 18 18, the Missouri territory presented 
a petition for admission into the Union as a State, and a bill 
in accordance therewith was introduced in the House on 
February 14, 18 19. 

Talmadge, of New York, offered an amendment prohib- 
iting the further introduction of slavery into the proposed 
new State, and providing that all children of slaves born 
after the admission of the State should be free when twenty- 
one years old. 

The debate on this amendment was conducted with great 
ability and attracted the attention of the whole country. Tay- 
lor, of New York; Mills and Fuller, of Massachusetts; Liver- 
more, of New Hampshire, and others favored the restriction, 
and Barton and Pindall, of Virginia; Henry Clay; Holmes, 
of Massachusetts, and many others spoke against it. After 

30 



The Missouri Question 3 1 

ten days of debate the vote stood on the first branch of the 
amendment, — prohibiting the further introduction of slavery, 
— eighty-seven yeas to seventy-six nays; and on the second 
branch, — freeing afterborn children of slaves, — eighty-two 
yeas to seventy-eight nays. 1 

The debate showed that the restriction was supported, 
not so much on any ground of humanity or kindness to the 
Negro, as on a determination to prevent an increase in the 
political power of the South that would come from an addi- 
tion to the number of slave States. The effort was to destroy 
the so much lauded balance of power by giving a preponder- 
ance to the North and East as against the South. It was evi- 
dent that, as the foreign slave trade had been suppressed, the 
increase in the number of slaves could only come by an excess 
of births over deaths among those slaves already in the 
Union. It was also evident that this excess of births over 
deaths would come only from a condition in which the slaves 
were well treated, and that if there should be an increase in 
the excess, it would come from the fact that the condition of 
the slaves would be affected favorably by their diffusion over 
new territory. And it was manifest that such amelioration 
would come from such diffusion over the new and fertile 
lands of the West, giving to the slave that greater comfort 
and happiness that come to all who migrate to sparsely set- 
tled communities, and inhabit fertile lands. 

The speeches of Henry Clay are not reported in the An- 
nals of Congress, but it appears from a reply made to him 
by Mr. Talmadge that Mr. Clay pressed this consideration. 
Mr. Talmadge said that Mr. Clay had "pressed into his ser- 
vice the cause of humanity," had "pathetically urged us to 
withdraw our amendment and suffer this unfortunate popu- 
lation to be dispersed over the country," urging that "they 
will be better fed, better clothed and sheltered, and that their 
whole condition will be greatly improved." 2 

Expressions showing that restriction was not for the bene- 
fit of the Negro, but of the white man, will be hereinafter 
quoted. 

The bill passed the House as amended. In the Senate 
the restriction amendment was voted down by twenty-two 

Annals, 15th Congress, 2d Session, p. 1214. 
*Ibid., p. 1 175. 



32 The Political History of Slavery in the United States 

yeas to sixteen nays on the first clause, — prohibiting further 
introduction of slavery, — and by thirty-one yeas to seven 
nays on the second clause, — freeing afterborn slaves. The 
House refused to concur, and the bill failed. At the opening 
of the sixteenth Congress, Missouri again applied for admis- 
sion into the Union, and Maine, then a part of Massachu- 
setts, with the consent of the latter also applied. 

Several efforts were made to pass the Missouri bill. 
Storrs, of New York, in the way of a compromise, proposed 
that the Missouri River should be the northern boundary of 
the State. He withdrew this measure afterward in order to 
amend it by a proviso that slavery should be prohibited in 
all the territory of the United States outside of Missouri and 
north of the thirty-eighth parallel and west of the Mississippi 
River, with provision for the return of fugitive slaves. 

Taylor, of New York, proposed to amend the bill by re- 
quiring the State by its Constitution to abolish slavery, but 
excepting from its operation all slaves then in Missouri, and 
providing also for a return of fugitive slaves. 

In the meantime the House had passed the bill to admit 
Maine. In the Senate the bill was amended by adding Mis- 
souri without restriction as to slavery, and three Northern 
senators, — Taylor, of Indiana, and Thomas and Edwards, of 
Illinois, — voted for the amendment. 1 

Thomas, of Illinois, moved to amend the Missouri part 
of the bill by prohibiting slavery from all territory of the 
United States west of the Mississippi River and north of 
36 30', except in Missouri. Barton, of Virginia, moved to 
substitute 40 for 36 30', which was lost. Then Trimble, 
of Ohio, moved to amend by excluding slavery from all ter- 
ritory west of the Mississippi, except in Louisiana, Arkansas, 
and Missouri. This was lost. Ayes, twenty; nays, twenty- 
four, — all the Northern senators voting for it, except Noble 
and Taylor, of Indiana, and Edwards and Thomas, of Illi- 
nois. 

On Thomas's amendment, — 36 30', — the vote was thir- 
ty-four ayes to ten nays, all the latter being from the South 
except the two Indiana senators. On the passing of the bill 
as amended the yeas were twenty-four to twenty nays. Hun- 
ter, of Rhode Island, and Parrott, of New Hampshire, join- 

1 Annals, 16th Congress, 1st Session, p. 424. 



The Missouri Question 33 

ing Edwards and Thomas, of Illinois, were the Northern 
senators voting" for the bill. Two Southern senators, — 
Smith, of Virginia, and Macon, of North Carolina, — voted 
in the negative. The House refused to concur in the amend- 
ment adding Missouri to the Maine bill. On the 28th of 
February the Senate refused to recede from so much of the 
amendment as admitted Missouri with Maine. For receding 
there were twenty-one ayes, all from the North ; against re- 
ceding there were twenty-three, all from the South, except 
Taylor, of Indiana, and Thomas, of Illinois. 

On the motion of Thomas, of Illinois, to recede from the 
amendment prohibiting slavery north of 36 30', the yeas 
were eleven, all from the South, except Noble and Taylor, 
of Indiana; and the nays were thirty-three, all from the 
North, except Johnson and Logan, of Kentucky; Johnson, of 
Louisiana; King and Walker, of Alabama; Lloyd and Pink- 
ney, of Maryland; Stokes, of North Carolina, and Williams, 
of Tennessee, — nine. Then a conference between the two 
houses was called. 

On the first conference there was a disagreement. On 
the second it was recommended that the Senate recede from 
all its amendments, leaving the bill for the admission of 
Maine alone. It was further recommended that the restric- 
tive clause in the House bill for the admission of Missouri be 
stricken out, and that the Thomas amendment prohibiting 
slavery north of 36 30' be added. 1 Maine was admitted 
March 3, 1820. In the meantime the House had, March 1, 
passed the Missouri bill with the restriction as to slavery, — 
ayes, ninety-one; nays, eighty-two. 2 In the Senate the re- 
strictive clause was stricken out. Hunter, of Rhode Island; 
Lanman, of Connecticut; Thomas, of Illinois, and Parrott, 
of New Hampshire, — four Northern Senators, — voted to 
strike out. 8 

Trimble, of Ohio, renewed his amendment prohibiting 
slavery in all the western territory acquired from France, 
except in Louisiana, Arkansas, and Missouri, stating that he 
offered it in the hope that it would furnish the basis of an 
agreement between the two Houses. It was voted down by 
twelve ayes to thirty nays. Thomas's amendment prohibit- 

1 Annals, 16th Congress, 1st Session, p. 471. 

2 Ibid., p. 1572. 3 Ibid., p. 467. 



34 The Political History of Slavery in the United States 

ing slavery north of 36 30' was then adopted and the bill 
passed the Senate March 21, 1820. In the House of Repre- 
sentatives, on the motion to concur in striking out the slavery 
restriction, the ayes were ninety and nays eighty-seven. 
Only twelve Northern Representatives voted for striking it 
out, — Baldwin and Fullerton, of Pennsylvania; Bloomfield, 
Eddy, and Kensy, of New Jersey ; Meigs and Storrs, of New 
York ; Foote and Stevens, of Connecticut, and »Hill, Holmes, 
and Mason, of Massachusetts. 

On the question of concurring in the insertion of the 
Thomas amendment, the yeas were one hundred and thirty- 
four, nays forty-two. Of the nays thirty-seven were from 
the South and five from the North, — Adams, Allen, and 
Folger, of Massachusetts; Buffum, of New Hampshire, and 
Gross, of New York. The bill was thus passed. 

We turn now to the debates, which with the resolutions 
of States and petitions show that the main ground of objec- 
tion to the admission of Missouri was the increase of political 
power in the South. 

Mr. Mellen, from Massachusetts, urged in the Senate that 
the admission of Missouri without the restriction would de- 
stroy the balance intended in the formation of the Constitu- 
tion in allowing three-fifths representation of slaves and 
equality of suffrage in the Senate. 

New Jersey presented resolutions in favor of the restric- 
tion, insisting that the three-fifths representation of slaves 
was unjust to the Northern States. 1 Pennsylvania made a 
strong protest by resolution of her Legislature against the 
admission of Missouri, and insisted, among other things, that 
such admission would be in contravention of the understand- 
ing when three-fifths representation was allowed for slaves. 

Mr. Burrill, of Rhode Island, referring to the admission of 
Missouri, said : "We also violate the true spirit and intention 
of that compromise in the Constitution by which three-fifths 
of the slaves are to be included in the apportionment of 
Representatives. This was agreed to to satisfy the then 
existing slaveholding States. . . . If we now introduce new 
slaveholding States, we increase the slave representation far 
beyond the number originally contemplated as possible." 2 

1 Annals, 16th Congress, 1st Session, p. 235. 

2 Ibid., p. 217. 



The Missouri Question 35 

Mr. Smith, of South Carolina, said in reference to the 
admission of Missouri that "the people of Massachusetts, so 
far from wishing Maine a separate State, voted down the 
scheme and said the State of Massachusetts should remain 
entire. But, sir, whenever Missouri applied for admission, 
the Legislature of that State, to keep up what the gentleman 
[Rufus King] calls the balance of political power, immedi- 
ately passed a law to authorize the division." He made a 
similar remark as to New York's consent to the admission 
of Vermont, stating that this consent was refused until Ken- 
tucky applied for admission. 1 

Mr. King's speech is not reported. 

Mr. Hemphill, of Pennsylvania, objected that the balance 
of power between the original States would be disturbed, as 
the owner of one hundred slaves had as much power in repre- 
sentation as sixty-one freemen. 

Mr. Plumer, of New Hampshire, said : "The free States 
would never have come into the Union had they supposed it 
possible that within the first generation they would be in a 
minority in the Government. ... At this moment the repre- 
sentatives of slaves alone, exclusive of whites, exceed the 
numbers and on this very question outvote all the representa- 
tives of six of the eleven of the non-slaveholding States. 
Feeling the weight of slave representation, and knowing with 
what fatal activity it increases, is it strange that the free 
States should wish to prevent its existence in States here- 
after to be admitted?" 

Mr. Holmes, of Massachusetts, who all along opposed the 
restriction, responded to the argument of Taylor, of New 
York, based on the alleged injustice to the free States of the 
three-fifths slave representation. He insisted that it was a part 
of the Constitution ; that the objection was nothing new ; and 
on this point he quoted from the instructions of Massachu- 
setts to her delegates in the Hartford Convention, in which 
this three-fifths representation was objected to as unfair, and 
as an impediment to the support and attachment of all the 
people to the Constitution. 2 

Mr. Smith, of Virginia, had argued in favor of diffusing 
the slave, — that is, the colored, — population throughout the 

1 Annals, 16th Congress, ist Session, p. 418. 

2 Ibid., p. 966. 



36 The Political History of Slavery in the United States 

Union in order to lessen the danger arising from the intermix- 
ing of heterogeneous races. To this Mr. Cook, of Illinois, who 
all through favored the restriction, responded that it afforded 
to his "mind a warning argument of the necessity of their 
emancipation and colonization." "For," said he, "I repeat it, 
that if the warning voice of experience tell us that it has 
been the fate of all countries where two distinct and hetero- 
geneous orders of society have existed, sooner or later to 
wade through wars and bloodshed, then even America, the 
seeming favorite of Heaven, unless timely measures are 
adopted to avoid it, will not share a better fate. It is with 
me, therefore, a leading consideration to limit the sphere of 
this dangerous population, with an eye to its ultimate eradica- 
tion from the bosom of our country." He then referred ap- 
provingly to resolutions offered by Mr. Meigs, of New York, 
proposing the use of the Navy to suppress the slave trade, 
and the devotion of the proceeds of the sales of the public 
lands to emancipation and colonization; and he declared that 
for one he was "prepared to devote every inch of the public 
soil west of the Mississippi, if so much shall be necessary, to 
the redemption of our country from this fatal, this deplorable 
evil." He also declared that we must get rid of this evil or 
it would get rid of us, and that there were but three ways to 
do this : first, emancipation and colonization ; second, amalga- 
mation; third, extirpation. 

He declared that the last two were so revolting and so 
uncongenial to our nature that no one could look on either 
as an expedient. 1 

And Mr. Hemphill, of Pennsylvania, gave as a reason for 
supporting the restriction of slavery in these territories that 
"the preference ought to be given to a white population over 
a black," — not a slave, — "population." 2 

Mr. Burrill, of Rhode Island, said: "I am not only 
averse to a slave population, but also to any population com- 
posed of blacks, and of the infinite and motley confusion of 
colors between the black and the white." 3 

The memorial of the citizens of Newport, Rhode Island, 
is also noteworthy. We have at another place set out what 

Annals, 16th Congress, pp. 1109, 'io, '11. 
2 Ibid., p. 1 134. 
8 Ibid., p. 217. 



The Missouri Question 37 

that memorial confessed as to the equal guilt of all sections 
and States for the existence of slavery. In another part of 
their memorial they show how much their opposition to the 
admission of Missouri is based on philanthropy toward the 
Negro. After saying that the new States would probably in- 
crease illicit slave importations from Africa, and that there 
would consequently be an increase in the slave population, the 
memorialists said that even if this were not true, they would 
be "still of the opinion that it would be unwise in Congress to 
permit the extension of slavery into the new States. The 
slaves which might then be introduced into Missouri, from 
the Union at large, would multiply, as your memorialists 
conceive, to a degree hitherto unknown in the country, not 
only from the increased facilities of subsistence, but the com- 
parative mildness of her climate. Whilst these causes were 
operating to perpetuate the evil in the West, the slave popu- 
lation in the Atlantic States must of necessity rise with the 
demand for labor and the means of life; and the event would 
be, as your memorialists can confidently predict, that the 
numbers of persons of this unhappy description in the United 
States would be a thousandfold greater than if the slaves 
were confined, as your memorialists would advise, to the 
States now holding them." 1 

This method of decreasing slavery by denying to the 
slaves a mild climate and facilities for subsistence raises a 
serious question as to whether philanthropy had anything to 
do with the opposition to the admission of Missouri. The 
fact that James D. Wolfe was about that time elected to the 
United States Senate from Rhode Island, and that he had 
been, up to the last date at which slave importation was al- 
lowable, extensively engaged in increasing in that way the 
number of slaves in the United States would also suggest 
that that mode of increase was less objectionable than the 
augmentation of numbers from natural increase occasioned 
by the comfortable condition of the slaves already here. This 
view derives support from the statement made by Mr. Macon, 
of North Carolina, in the debate that "the only time he ever 
heard the slave trade defended in Congress was by a member 
from Rhode Island." 2 

Annals, 16th Congress, ist Session, p. 2455. 
3 Ibid., p. 230. 



38 The Political History of Slavery in the United States 

Mr. Pinkney, of Maryland, in his great speech on the 
subject, said : "There are those in this House who appear to 
think .... that the particular restraint now under consid- 
eration [the restrictive clause about slavery] .... benevo- 
lent as respects the unhappy victims [slaves], whom with a 
novel kindness it would incarcerate in the South, and bless 
by decay and extirpation." 1 He also said: "Their [the 
slaves] civil condition will not be altered by the removal from 
Virginia or Carolina to Missouri. They will not be more 
slaves than they now are. Their abode, indeed, will be dif- 
ferent, but their bondage the same. Their numbers may pos- 
sibly be augmented by the diffusion, and I think they will. 
But this can only happen because their hardships will be miti- 
gated, and their comforts increased." 2 

The Enabling Act provided for the election of delegates 
to a convention to form a constitution and State government, 
"and that the said State, when formed, shall be admitted into 
the Union upon an equal footing with the original States in 
all respects whatever .... Provided the same [Constitu- 
tion and Government] when formed shall be Republican and 
not repugnant to the Constitution of the United States." 

The passage of the act was deemed to be the end of the 
controversy. But the spirit of sectional strife was so strong, 
the love of power so potent, the determination to allow no 
increase in the political power of the Southern States so per- 
vading, that this expectation was doomed to disappointment. 
The Constitution framed was unobjectionable, but for the 
fact that exception was taken to a clause in it forbidding the 
entry and settlement of free Negroes and Mulattoes in the 
State. This clause was made the ground of a persistent and 
bitter opposition to the admission of the State. The commit- 
tee of the Senate to whom the final resolution for the admis- 
sion of Missouri was referred, — consisting of Lowndes, of 
South Carolina; Sergeant, of Pennsylvania, and Smith of 
Virginia, — reported a resolution for admission, with a writ- 
ten report. In this report they stated that it was best, and 
also in accord with principle, to leave the constitutionality of 
the provisions that were objectionable to the decision of the 
courts. This reasonable view, however, did not prevail. A 

1 Annals, 16th Congress, ist Session, p. 393. 
* Ibid., p. 401. 



The Missouri Question 39 

long and bitter controversy arose over this provision. The 
debates were able, but in many instances acrimonious and 
bitterly sectional. 

Eaton, of Tennessee, at an early period of the debate 
offered a proviso to the resolution for the admission of Mis- 
souri "that nothing herein contained shall be construed to 
give the assent of Congress to any provision in the consti- 
tution of Missouri, if any such there be, which contravenes 
that clause of the Constitution of the United States which 
declares that the citizens of each State shall be entitled to all 
the privileges and immunities of citizens of the several 
States." It was this clause that the opponents of the resolu- 
tion claimed was violated by the objectionable provision in 
the Constitution of Missouri. 

Here was a distinct proposition to leave the decision of 
the point to the courts. But this would not satisfy the op- 
ponents of admission. Maine had already been admitted. 
The balance of power so much insisted on as a thing sacredly 
to be observed had been broken, and the preponderance was 
in the North. The politicians and statesmen of that section 
seemed determined not to take a step which might tend to 
restore the equilibrium of political forces. 

In view of the then condition of the legislation of the 
Northern States in reference to free Negroes, and their sub- 
sequent action on the same subject, it seems that the objection 
to admission now put forth was a mere pretense to prevent 
the restoration of the balance of power to the South. 

In Ohio, whose Representatives and Senators insisted on 
the objection, there was a law then in force, and had been 
since 1807, prohibiting any free Negro from settling in the 
State, unless he would give bond and surety in the penalty 
of five hundred dollars for his good behavior and to indem- 
nify the State against his becoming a pauper. And it was a 
criminal offense to harbor or employ such a Negro who had 
not given the bond, and he was an incompetent witness in 
any case in which a white man was interested. No objection 
had been made to this. 

In Massachusetts Negroes were excluded from enroll- 
ment in the militia, but were compelled to attend the calls for 
the militia and do such work as might be assigned them. 
They were good enough to do work about the camp, but 



4-0 The Political History of Slavery in the United States 

were not entitled to the privilege of freemen to bear arms 
for the defense of the country, and they had been expressly 
excluded in Massachusetts from serving in the army during 
the Revolutionary War. 1 

In the same State free Negroes and Mulattoes at this 
very time were prohibited from entertaining any Negro or 
Mulatto servant under penalty of five shillings, and if they 
were unable to pay this, they were to work at hard labor two 
days for each shilling of the fine. 

Notwithstanding the abolition of slavery in Massachu- 
setts, there seems to have been some kind of servitude there 
of free Negroes and Mulattoes ; for by statute in existence at 
the time of this great controversy it was provided that free 
Negroes and Mulattoes should not be freed until bond and 
surety had been first given as indemnity against such free 
Negroes or Mulattoes becoming a public charge. And, to 
show that the statute was not passed from a merely specula- 
tive apprehension of evil, it was stated in the preamble that 
great charges and inconvenience had already occurred to 
divers towns from setting such persons free. At the same 
time it was the law of Massachusetts that if a Negro or 
Mulatto should strike any person of the English or other 
Christian races, he should be whipped at the discretion of the 
Justice, and intermarriage between whites and Negroes or 
Mulattoes was prohibited, and a penalty of two hundred and 
fifty dollars imposed on any minister who should solemnize 
such a marriage. 

At almost the very date of the great controversy, — namely, 
in 1822, — Rhode Island had a revision of her laws; and in- 
termarriage between whites and blacks was prohibited. And 
the granting of license for keeping taverns, ale houses, vic- 
tualing houses, cook shops, oyster shops, and retailing liquors 
was prohibited "to any colored or black person," and in the 
same revision there was a statute which declared "that if any 
free Negro or Mulatto shall keep a disorderly house, or en- 
tertain any person at unseasonable hours, or in an extrava- 
gant manner," the town council was to break up the house- 
keeping of such Negro or Mulatto, and bind him out to serve 
for two years. 

In Connecticut from 1774 to 1797, — embracing all the 

1 See Post, in extracts contained in Mr. Davis' speech. 



The Missouri Question 41 

Revolutionary War and all the period of the Government 
under the Articles of Confederation, and that portion of our 
history that covers the formation and adoption of the Con- 
stitution and the administration of General Washington, — 
there was a statute in force which, whilst it prohibited the 
importation of slaves, at the same time contained a provision 
that if any free Negro should travel without a written pass, 
and should be stopped or taken up, he should pay all charges 
on account thereof. In New Jersey and Vermont and New 
Hampshire they were not allowed to serve in the militia. 

Mr. Smith, of South Carolina, brought out in debate a 
great many of these provisions and others. 1 

Mr. Smith also cited laws of the free States against the 
entry into them of the citizens of other States. He cited a 
law from Vermont giving the selectmen of a town power to 
remove from the State any person who came there to reside, 
and a person so removed, if he returned, was to be whipped. 
In Connecticut and New York there were statutes cited by 
him authorizing the removal from these States of persons 
coming into them. He cited a statute in Rhode Island pro- 
hibiting white persons from trading with free Negroes and 
Mulattoes, and providing further that if a white man were 
suspected of such trading and would not purge himself 
under oath, he was to be deemed guilty. 

These statutes in existence then in the free States were 
not deemed grounds of objection even, and the States hav- 
ing these laws in force were the most active and unrelenting 
in pressing the objection against the clause of the Constitu- 
tion of Missouri above alluded to. 

Mr. Smith also showed that James D. Wolfe, the then 
senator-elect from the State of Rhode Island, was actively 
engaged in the slave trade in the year 1804, having ten ves- 
sels so employed. He also presented an official list of the 
vessels so employed, with their owners and consignees, en- 
tering the port of Charleston, South Carolina, in the years 
1804-7, an d from this list it appears that fifty-nine of these 
vessels belonged to Rhode Island, one to Connecticut, and 
one to Boston, while eighty-eight of the consignees were from 
Rhode Island. Of the slaves imported into Charleston in 
American vessels in those years two thousand and six were 
1 Annals, 16th Congress, 2d Session, p. 51 et seq. 



42 The Political History of Slavery in the United States 

by merchants and planters in South Carolina, and seven 
thousand nine hundred and fifty-eight by citizens of Rhode 
Island. 1 

From this it appears to some extent how the free States 
above named treated free Negroes and Mulattoes at the time 
that they were pressing for the recognition of their citizen- 
ship in Missouri as a condition precedent to her admission 
into the Union. It will be hereafter shown that this condition 
of the legislation of the Northern states as to free Negroes 
was not abnormal and confined to that particular period ; but 
was continued with increasing severity until the very moment 
they determined to inflict Negro equality and Negro citizen- 
ship on the Southern States of the Union. 

But, to go forward with the progress of the bill for the 
admission of Missouri, the House on December 13th de- 
feated the resolution to admit Missouri : ayes, seventy-nine ; 
nays, ninety-three. 2 

The Senate passed a resolution for that purpose, and on 
July 15, 1 82 1, it was referred to a committee in the House. 
The resolution as it passed the Senate is as follows : "Re- 
solved, that the State of Missouri shall be, and is, hereby 
declared one of the United States of America, and is ad- 
mitted into the Union on an equal footing with the original 
States in all respects whatsoever; provided, that nothing 
herein contained shall be construed to give the assent of 
Congress to any provision in the Constitution of Missouri (if 
any such there be) which contravenes that clause of the Con- 
stitution which declares that the citizens of each State shall 
be entitled to all the privileges and immunities of citizens of 
the several States." 

Various efforts were unsuccessfully made to amend the 
resolution so as to make it agreeable to the House. Mr. 
Clay moved for a committee of thirteen to consider the mat- 
ter, and the motion was agreed to. 

The committee consisted of seven from the free States 
and six from the slave states, Mr. Clay being chairman. 
This was on February 2, 1821. On the 10th Mr. Clay made 
a written report and recommended an amendment of the 
Senate Resolution so as to make it declare that Missouri 

'Annals, 16th Congress, 2d Session, p. 51 ct seq. 
2 Ibid., p. 670. 



The Missouri Question 43 

shall be "admitted into this Union on an equal footing with 
the original States, in all respects whatsoever, upon the fun- 
damental condition that the said State shall never pass any 
law preventing any description of persons from coming to 
and settling in the said State who now are, or hereafter may 
become, citizens of any of the States of this Union; And 
provided also, That the Legislature of the said State, by a 
solemn public act, shall declare the assent of the said State 
to the said fundamental condition, and shall transmit to the 
President of the United States, on or before the fourth Mon- 
day of November next, an authentic copy of the said Act; 
upon the receipt whereof, the President, by proclamation, 
shall announce the fact; whereupon and without any further 
proceeding on the part of Congress, the admission of the said 
State into this Union shall be considered as complete; And 
provided further, That nothing herein contained shall be con- 
strued to take from the said State of Missouri, when ad- 
mitted into this Union, the exercise of any right or power 
which can now be constitutionally exercised by any of the 
original States." 1 

The resolution was carefully guarded so as not to give 
the sanction of Congress to the clause in the Constitution of 
Missouri to which objection had been made. It declared 
that said clause should not be construed to exclude from the 
State any citizen of any other State; but the last proviso 
secured to the new State all the powers of any of the old 
States. This resolution the opponents of admission would 
not agree to, for in view of what has been stated concerning 
the legislation of New England and other States with refer- 
ence to free Negroes, it would have resulted that that legisla- 
tion was unconstitutional, and therefore null, or that the 
clause in the Constitution of Missouri, to which the opponents 
of admission objected, would be held valid, and the oppo- 
nents of admission were not willing to accept such a result. 

After a long debate the resolution amended as above set 
out was rejected: ayes, sixty-four; nays, seventy-three. 2 

1 Annals, 16th Congress, 2d Session, p. 1079. 

2 Ibid., p. 1 102, 



CHAPTER V 

REPUDIATION OF COMPROMISE ON 36° 30' 

Mr. Mallory, of Vermont, then renewed his former mo- 
tion to amend so as to require Missouri to frame a Consti- 
tution prohibiting slavery. The motion, — notwithstanding the 
alleged compromise of the last session, by which Missouri 
was to be admitted as a slave state and slavery to be excluded 
north of 36 30', — secured two-thirds of all the votes of the 
non-slaveholding states, — the ayes being sixty-one, all from 
the North; the nays, one hundred and seven. Of the latter, 
only thirty-three were from the North, making nearly two 
to one from the North who directly repudiated the alleged 
compromise embraced in the prohibition of slavery north of 

36° 30'. 

The resolution was then agreed to in committee of the 
whole, the ayes being eighty-six and nays eighty-three. But 
so strong was the opposition to the admission when the vote 
came to be taken in the House that there were only eighty 
ayes to eighty- three nays. 1 A motion to reconsider was car- 
ried by a vote of one hundred and one to sixty-six, but on 
another vote taken February 2, 1821, the resolution was 
again defeated: ayes, eighty-two; nays, eighty-eight. Of the 
eighty-two ayes, one was from Pennsylvania, two from New 
Jersey, one from Rhode Island, one from Connecticut, seven 
from New York, and two from Massachusetts. Of the two 
from Massachusetts, one was from a district in Maine which 
had been recently admitted into the Union, and the other 
failed to be re-elected to the next Congress. 

This seemed to end the matter; but Mr. Clay again came 
to the rescue. On February 22 the House, on his motion, 
agreed, by a vote of one hundred and one to fifty-five, to 
raise a committee of twenty-three to whom the question of 
admission was to be referred. Two days thereafter the com- 

1 Annals, 16th Congress, 2d Session, pp. 1115-16. 

44 



Repudiation of Compromise on j6° 30' 45 

mittee reported the following resolution : "Resolved, That 
Missouri shall be admitted into this Union on an equal foot- 
ing with the original States in all respects whatsoever, upon 
the fundamental condition that the fourth clause of the 
twenty-sixth section of the third article of the Constitution 
submitted on the part of said State to Congress shall never 
be construed to authorize the passage of any law, and that 
no law shall be passed in conformity thereto, by which any 
citizen of either of the States in this Union shall be excluded 
from the enjoyment of any of the privileges and immunities 
to which such citizen is entitled under the Constitution of the 
United States, with a proviso that the Legislature shall, 
by solemn public act, declare their assent to said fundamental 
condition, and transmit this act to the President by the fourth 
Monday in November, and thereupon the admission of the 
State shall be complete." x 

The committee in this report divested the resolution of 
the second proviso contained in the first report, which se- 
cured, notwithstanding the first proviso, the same power to 
Missouri as belonged to the original States. 

Mr. Allen, of Massachusetts, doubtless apprehending that 
the citizenship of the Negro could not be sustained under the 
Constitution of the United States, or perhaps being willing 
to interpose all possible obstacles to the admission of Mis- 
souri, moved to amend by striking out the word "citizen" 
wherever it occurred, and to insert "free Negroes and Mu- 
lattoes." A vote on this was prevented by a call of the pre- 
vious question, which was sustained by one hundred and nine 
ayes, and there were fifty nays. On the final passage of the 
resolution there were eighty-six ayes to eighty-two nays, — 
four majority. Of this majority there were two from Penn- 
sylvania, four from New Jersey, six from New York, one 
from Rhode Island, one from Connecticut, two from Massa- 
chusetts, one being from the part admitted as the new state of 
Maine, — in all sixteen representatives. All the rest from the 
Northern states, notwithstanding the alleged compromise of 
the preceding session, voted against the admission of Mis- 
souri. 

In order to illustrate the foregoing statements, and at 
the same time to fortify the position that the slavery agita- 

1 Annals, 16th Congress, 2d Session, p. 1228. 



46 The Political History of Slavery in the United States 

tion mainly owed its origin, its continuance, and its violence 
to the contest involved in it for political power, I shall add 
the following facts : 

The Legislature of New Jersey protested against the ad- 
mission of Missouri as a slave State. The first resolution as 
presented to Congress is as follows : "Resolved, That the 
further admission of Territories into the Union without the 
restriction of slavery would, in their opinion, essentially im- 
pair the right of this and other existing States to equal rep- 
resentation in Congress (a right at the foundation of the 
political compact), inasmuch as such newly admitted slave- 
holding States would be represented on the basis of their 
slave population; a concession made at the formation of the 
Constitution in favor of the then existing States, but never 
stipulated for new States, nor to be inferred from any ar- 
ticle or clause in that instrument." * 

In the fifth resolution they asserted that Congress should 
exercise the power of excluding "in order to preserve the 
political rights of the existing states." 

A memorial was presented from the citizens of Hartford, 
Connecticut, against the admission of Missouri. It breathed 
the same spirit on the subject of slave representation as did 
the celebrated convention held at that place seven years be- 
fore. The memorialists disavowed all feelings of an ignoble 
jealousy that weighs all political questions in the petty scale 
of mere State interests, and measures every proceeding of the 
national Legislature by the narrow and contracted standard 
of advantages to the Northern and Southern, the Eastern 
and Western sections of our common country; they state that 
the principle of equality of men was waived in its application 
to "those States whose policy led them to make it a condi- 
tion of their adoption of the Federal Constitution that they 
should retain the privilege of holding slaves, and that these 
slaves should go to increase the mass of their population 
which should be entitled to a voice in our National Councils." 
They aver that this was done in a spirit of compromise, and 
does not apply to new States. They urge that "the permis- 
sion of slavery in the new States will be an unwarrantable 
departure from the principles of that compromise, which it is 
confessed led to the formation of that part of the Constitu- 

1 Annals, 16th Congress, 1st Session, p. 235. 



Repudiation of Compromise on 36° 30' 47 

tion which gives to the slaveholding States such an influence 
in the councils of the nation from a great mass of the popu- 
lation who are not recognized or treated as freemen." x 

In the year 18 18 Connecticut revised her Constitution 
and prohibited Negroes from voting, which provision re- 
mained in full force until it was made null by the Fifteenth 
Amendment. The memorialists could see no propriety in 
allowing one Negro slave to be counted as three-fifths of a 
white man, yet it was then a part of good statesmanship and 
just and equal to count a Negro as a full white man, though 
the Negro was entitled to no political privilege whatever and 
exercised no political power. 

We have now seen how this celebrated controversy arose, 
how it progressed, on what motives it was founded, and to 
what ends and aims it looked. Like the opposition to the 
acquisition of Louisiana in the first instance, and the subse- 
quent opposition to the admission of that State into the 
Union, the contest against the admission of Missouri was 
waged on motives of political power both in sections and in 
States. 

In view of the subsequent events, the philosophic historian 
may well doubt whether the preeminence that the genius and 
patriotism of Southern Statesmen and warriors acquired in 
the early stage of our political life did not, in the end, con- 
tribute to her final overthrow and humiliation. Of the first 
thirty-six years of our life under the Constitution the Presi- 
dency was held for thirty-two years by citizens of Virginia; 
only four years were the portion of New England. That 
this was unsatisfactory to New England is seen in that reso- 
lution of the Hartford Convention that asked for an amend- 
ment of the Constitution prohibiting the reelection of a 
President and prohibiting also that he should be elected from 
the same State for more than two successive terms. When 
the Missouri question arose there had been a President from 
Virginia for seven terms and for five in succession. This 
continued predominance of Southern influence and power 
in the national affairs wrought the two-fold injury of dis- 
satisfying the North and of begetting in the minds of South- 
ern men a great reluctance to surrendering a power and in- 
fluence they had so long enjoyed and exerted. 
'Annals, 16th Congress, 1st Session, pp. 2460-1. 



48 The Political History of Slavery in the United States 

At the time of the adoption of the Constitution, the peo- 
ple were nearly all engaged in agriculture, and the Southern 
States, on account of their climate and soil being the best 
adapted to that business, were the richest. The accumulation 
of wealth by agriculture is necessarily slow. The building of 
large fortunes can come quickly and rapidly only from trade. 
At length commerce solely, then commerce with manufac- 
tures, had transferred the preponderance of wealth to the 
North. The institution of slavery, as predicted by Colonel 
Mason in the Federal Convention, proved unfavorable to 
commerce, to the arts, and to manufactures. That institu- 
tion also had been a barrier to immigration. From these 
causes the contest for ultimate supremacy or preponderating 
influence in the Union had already been decided, and decided 
against the South. The admission of Missouri as a slave 
State could not, and did not, prevent this, and the North 
might well have waited patiently for the event that was sure 
to come; and the South would have been wiser had she 
ceased an unavailing contest in which she never could be 
victor. 

If there was doubt about this, it was settled by the alleged 
compromise prohibiting slavery north of 36 30'. By that 
the South gained the admission of Missouri and the subse- 
quent admission of Arkansas, whilst all the immense territory 
now embraced in the states of Kansas, Nebraska, Iowa, Ore- 
gon, Minnesota, and a great part of Colorado, and in the 
states of Idaho, Montana, and Washington was surrendered. 
And more than this, it was dedicated by an irrepealable law 
of climate and production to free labor. The North might 
well have rested on the alleged compromise of 36° 30' and 
have yielded assent to the admission of Missouri. 

But so strong was the desire for sectional power and sec- 
tional aggrandizement that the North seized at the very next 
session of Congress upon the pretext that the clause in the 
Constitution of Missouri, before alluded to, was a depriva- 
tion of constitutional rights to free Negroes and Mulattoes, 
and resisted on that ground with more bitterness than before 
the admission of that State. 

That this was a mere pretext has been abundantly shown 
by the reference that has been made to the statutes of North- 
ern States in relation to free Negroes and Mulattoes. The 



Repudiation of Compromise on j6° 30' 49 

policy of these statutes continued to be carried out in the 
non-slaveholding States up to the time of the adoption of 
the Fifteenth Amendment. 

As early as 1829, and perhaps earlier, Illinois prohibited 
Negroes and Mulattoes from settling in that State unless they 
had certificates of freedom; moreover, each settler was to 
give bond with good security in a penalty of One thousand 
dollars, on the condition that he would not become a charge 
upon the country, and that he would demean himself at all 
times according to law, and that he would punish any person 
hiring or giving sustenance to a Negro residing in the State 
in violation of these statutes with a fine of five hundred dol- 
lars. Marriages between whites and blacks were prohibited, 
and violators of these statutes were to be whipped with 
thirty-nine lashes and imprisoned one year. Stringent pro- 
visions were made in relation to apprenticing free Negroes 
and Mulattoes. In the Revision of the Statutes of 1833 
there was a prohibition against bringing free Negroes into the 
State, unless bond and security were given to indemnify the 
country against such negroes becoming paupers. Negro ser- 
vants were allowed to be whipped if they were lazy or guilty 
of disorderly behavior. Any assembly of them to the number 
of three or more for the purpose of dancing or revelling was 
punishable by a fine of twenty dollars on the owner of the 
house, and by the whipping and imprisonment of those assem- 
bled. 

In 1845 it was enacted that any person bringing a Negro 
into the State for the purpose of freeing him was to be fined 
one hundred dollars. 

By the Constitution of 1847 the Legislature was required 
at its first session to pass such laws as would efficiently pre- 
vent free persons of color from immigrating into the State 
and prevent effectually owners of slaves from bringing them 
to the State for the purpose of emancipating them. A law 
was passed by which any such immigrant Negro remaining 
in the State ten days was to be fined fifty dollars, and if he did 
not pay it he was to be sold for the fine, and after his service 
expired, if he failed to leave in ten days, he was to be fined 
one hundred dollars and sold again, and this process of fining 
and selling was to go on, the fine being increased fifty dollars 
at each succeeding step until the Negro died or left the State. 



50 The Political History of Slavery in the United States 

In Indiana very similar statutory and constitutional pro- 
visions were made. See her Constitution. 

In nearly all the Northern States there were provisions 
excluding Negroes and Mulattoes from voting, from serving 
in the militia, from being jurors, and from being witnesses 
where white men were parties. All these statutes were un- 
challenged. 

In 1857 Oregon formed a Constitution preparatory to ad- 
mission into the Union. The Constitution of Oregon con- 
tained this provision : 

"No free Negro or Mulatto, not residing in this State at 
the adoption of this Constitution, shall come, reside or be 
within this State or hold any real estate or make any contract 
or maintain any suit therein; and the legislative assembly 
shall provide penal laws for the removal by public officers of 
all such free Negroes and Mulattoes and for their effectual 
exclusion from the State, and for the punishment of persons 
who shall bring them into the State, or employ or harbor them 
therein." 

Oregon, however, prohibited slavery and was to come in 
as a free State. She was not required, as Missouri was, to 
make any renunciation under this clause. Mr. Seward, at 
that time the leader of the anti-slavery party in the Senate 
of the United States, though objecting to this clause as harsh, 
failed to see in it any infraction of the Constitution of the 
United States, or deprivation of the rights of citizens, and 
stated he would vote for the admission of the State, which 
he did. 1 

Mr. Fessenden, of Maine, objected to admission on ac- 
count of this provision, but Judge Trumbull, Republican 
Senator from Illinois, stated that while he could not vote for 
the admission of Oregon, it was not for the reason assigned 
by Mr. Fessenden. He said : "I by no means assent to the 
doctrine that Negroes are required by the Constitution of the 
United States to be placed on an equal footing in the States 
with the white citizens." 

Preston King, a Republican Senator from New York, 
thought the provision was harsh, but declared : "I certainly 
would not be in favor of encouraging the immigration of 
any considerable number of black men to settle and live 

1 Congressional Globe, 1st Session, 35th Congress, p. 1964. 



Repudiation of Compromise on 36 30' 5 1 

among a white population. I think it is the interest of both 
races that we should live separate." He favored the settle- 
ment of the free blacks in Central and South America, and 
he was, as he stated, perfectly willing that the people of those 
new free States should exercise their discretion and exclude 
Negroes if they saw proper. 1 

The Free Soil convention of Topeka, Kansas, which 
framed that Constitution, submitted a similar provision of 
the Constitution to a separate vote of the people, and it was 
adopted. See speech of Mr. King 2 and speech of Mr. Doug- 
las. 3 Yet there was no objection by anti-slavery men to the 
admission of Kansas on that ground. So far from that, the 
National Convention of the Republican party held in i860 
nominated Mr. Lincoln with his well-known views on that 
subject, and demanded the immediate admission of Kansas. 
It will be seen hereafter that Mr. Lincoln, when President, 
concurred fully in the views of Mr. King, and favored sepa- 
ration of the races by colonization of free Negroes in South 
America. See his message, December, 1862. 

1 Congressional Globe, 1st Session, 35th Congress, p. 2207. 

2 Ibid., p. 2207. 

3 Ibid., p. 1965. 



CHAPTER VI 

THE ANNEXATION OF TEXAS 

The next occasion for any considerable sectional con- 
troversy grew out of the proposed annexation of Texas. 

It is certain that the main purpose of the South in the 
advocacy of that measure was to secure an addition to the 
waning power of that section. See speech of Mr. Marsh, of 
Vermont. 1 

That the opposition of the North to that measure was to 
prevent that increase, and on account of the three-fifths rep- 
resentation of slaves, is also clear. It is only necessary to 
cite the resolution of the Legislature of Massachusetts on 
that subject and a few other authorities. These resolutions 
denied the constitutional power of Congress to annex Texas, 
and claimed that it was a power reserved to the people. 

The fourth resolution was as follows : "That the people 
of Massachusetts will never consent to use the powers re- 
served to themselves to admit Texas, or any other State or 
Territory, now without the Union, on any other basis than 
the perfect equality of freemen; and that while slavery or 
slave representation forms any part of the claims or condi- 
tions of admission, Texas, with their consent, can never be 
admitted." 2 

Mr. Dayton, of New Jersey, in opposing annexation, al- 
luded to the three-fifths principle of Southern representation, 
which weighed five slaves against three freemen, and said his 
voice would never be given for extending that principle be- 
yond the Sabine. 3 

The resolutions of the State of Connecticut presented to 
the House of Representatives December 15, 1845, denied, 

1 Appendix to the Congressional Globe, 2d Session, 28th Congress, 

P- 314- 

3 Congressional Globe, 2d Session, 28th Congress, p. 299. 

'Ibid., p. 333. 

52 



The Annexation of Texas 53 

like those of Massachusetts, the power of Congress to admit 
new States, not formed in the original territory of the United 
States. They denounced the annexation of a large slave- 
holding territory with the declared intention of giving 
strength to slavery as a deliberate assault upon the com- 
promises of the Constitution. They also denounced the ac- 
tion of their Senator, J. M. Niles, in voting for the resolution 
of annexation, which provided for the extension and perpetu- 
ation of human slavery and added to its already predominating 
influence in the National Councils. 1 

Caleb B. Smith, of Indiana, said in debate in the House 
that the Northern people "will resent any attempt to extend 
or perpetuate slavery, or to increase the relative political 
power of those who have an immediate interest in it." 

Mr. Winthrop, of Massachusetts, said that he opposed 
annexation because it was unconstitutional, and "because I 
believe it will break up the balance of our system, violate the 
compromise of the Constitution, and endanger the perma- 
nence of the Union; and above all, because I am opposed to 
the extension of slavery or the addition of another inch of 
slave territory to the Nation." 

Texas was admitted, with a proviso that it might there- 
after be divided into five States, and that slavery should be 
excluded north of 36 30'. 

THE WILMOT PROVISO DURING THE WAR WITH MEXICO 

The next great controversy on the subject grew out of 
the proviso offered by Mr. Wilmot, of Pennsylvania, to a 
bill appropriating money to enable the President to conclude 
a peace with Mexico. The proviso was first offered on the 
8th day of August, 1846. The session was near the end, and 
there was but little discussion on it. It was adopted in the 
House by a vote of eighty-three to sixty-four. Stephen A. 
Douglas, Ficklin, Hogan, and McClernand, of Illinois; Har- 
per and Vinton, of Ohio; Ewing and Ramsey, of Pennsyl- 
vania ; Wright, of New Jersey, and Rockwell, of Connecticut, 
were the only Northern men who voted against the proviso. 

On the 10th of August the matter came up in the Senate. 

1 Appendix to the Congressional Globe, 1st Session, 29th Con- 
gress, p. 59. 



54 The Political History of Slavery in the United States 

This was the last day of the session as previously fixed by a 
concurrent resolution of adjournment. 

Mr. Davis, of Massachusetts, took the floor and occupied 
it until the hour of adjournment, whereby the bill to which 
the proviso was attached was defeated. He was asked to give 
way for action to be taken prolonging the session. This he 
declined. He opposed the bill and favored the proviso. He 
opposed the acquisition of slave territory. He said : "The 
acquisition of territory on our Southern limits redounded to 
their" (Southern friends, as he called them) "benefit alto- 
gether. The newly acquired territory ranged itself under 
their banner. . . . And while contemplating the acquisition 
of territory extensive enough to furnish ten more States, I 
would like to know if their interest alone is to be consulted ? 
If California is to be annexed, that vast region comprehend- 
ing one-third at least of the Mexican Republic, with institu- 
tions assimilating themselves to those of the Southern States 
of this Union, I say it seems to me to be a matter which well 
deserves the attention of the free States, in order that the 
equipoise of power may not be completely subverted and made 
to incline in favor of their Southern friends." x 

Here again, in the first speech made in Congress in favor 
of this celebrated proviso, it was announced that opposition 
to the bill was grounded on the fact that it increased the po- 
litical weight of the South in the National Councils. 

Mr. Wilmot on February i, 1847, — war being still fla- 
grant, before the great victory of the American arms at 
Buena Vista, and before Scott had commenced his march 
from Vera Cruz to the City of Mexico, — again offered his 
proviso to a bill appropriating three millions of dollars to 
enable the President to conclude a peace with Mexico. After 
a great deal of acrimonious discussion, the Senate bill, with- 
out the proviso, was passed in the House. Yeas, one hundred 
and fifteen; nays, eighty-one. 2 

Peace was made and territory acquired without any laws 
being enacted with a provision prohibiting slavery in the ac- 
quired domain. 

Before any territorial government was formed for Cali- 
fornia she applied under a non-slaveholding Constitution for 

1 Congressional Globe, 1st Session, 29th Congress, p. 1221. 

2 Congressional Globe, 2d Session, 29th Congress, p. 573. 



The Annexation of Texas 55 

admission into the Union as a State. There had been no 
previous enabling Act, no civil government even. She was 
under military rule when her Constitution was formed. At 
the same time there were pending questions concerning the 
boundary of Texas, the formation of a civil government for 
New Mexico, and also for Utah, and for the passage of a 
more effective law for the delivery of fugitive slaves. 

Mr. Clay, after a long retirement from public life, re- 
turned to the Senate to aid in settling these serious questions. 
The wish of the North was to place Congressional interdic- 
tion of slavery on the new Territories. The Senate resisted 
and proposed the running of the Missouri compromise line of 
36 30' to the Pacific. This was rejected. Bills for these 
Territories were then formed upon the principles of non- 
intervention as to slavery in the territory, and so finally 
passed. The debate on the subject of slavery was long and 
bitter. The South resisted the admission of California under 
a non-slaveholding Constitution. It was complained that the 
admission of the State was wholly irregular; that the mili- 
tary commander had aided in forming the convention that 
framed the Constitution. The South could not, without re- 
luctance and chagrin, see the splendid territory acquired 
through Southern policies, and in a very large degree by 
Southern valor, wrested from that section and added to the 
already preponderating influence and power of the North. 
The reluctance was greater since the spirit of sectionalism 
had grown more and more bitter, and the danger was immi- 
nent that the ultimate aim of the North would be accom- 
plished, — that is, the destruction of slavery in the states. 

So the South, or a large portion of it, resisted the admis- 
sion of California upon grounds of irregularities in forming 
the Constitution, — upon grounds that had been waived in the 
case of Texas. The North, seeing the opportunity of adding 
a great State to the already overwhelming preponderance of 
that section, forgot the constitutional objection that from 
1803 down to that time it had maintained, — that no power 
existed in Congress to admit new States from territory ac- 
quired since the formation of the Constitution. As late as 
1845, as we have seen, the doctrine had been maintained in 
full force by great northern statesmen, and sanctioned by 
solemn resolutions of state Legislatures. 



56 The Political History of Slavery in the United States 

So the North, with absolute unanimity, favored the im- 
mediate admission of California; fifty-six Southern Represen- 
tatives voted against it. These inconsistencies came from the 
same old enduring cause, — a contest for sectional political 
power. Both sides recognized the truth of the declaration 
made by Mr. Quincy in opposing the admission of Louisiana 
in 1811, "that when the weight of particular sections of a 
confederacy was greatly unequal, the resulting power would 
be abused, and that it was not in the nature of man to exer- 
cise it with moderation." The South felt this keenly, being 
the weaker party, and cherishing domestic institutions to 
which the North was bitterly hostile. Shall it be added that 
the North felt and acknowledged its truth and had deter- 
mined to secure the greatly preponderant power, and to use 
it in its own discretion, without reference to the interests or 
wishes of the South? It is certain that the South thought so. 

Reading over these proceedings now, after the lapse of 
forty years, 1 we will be struck with the passion and heat of 
the debates. There seemed to be insanity on both sides with 
reference to the Territories. Whether slavery should be ex- 
cluded from them by Congressional action was of no practi- 
cal importance, — a mere question of prejudice on one side and 
of pride on the other. But the voice of reason, if not silent, 
was at least drowned by passion. 

Mr. Webster, in his great speech, March 7, 1850, 2 dem- 
onstrated that slavery could not go into the Territories ac- 
quired from Mexico: "That it (slavery) was excluded by 
the law of nature, the law of physical geography, the law of 
the formation of the earth, a law that with a strength beyond 
all laws of human enactment settled the question forever." 

Speaking of the Wilmot proviso, he declared that "such 
a proviso would be idle as respects any effect it would have 
upon the Territory, and I would not take the pains uselessly 
to reaffirm an ordinance of nature, nor to reenact the will of 
God. I would put in no Wilmot proviso, for the mere pur- 
pose of a taunt and of a reproach." Yet for a mere taunt and 
a reproach the North was eager to put in the form of law the 
Wilmot proviso. Mr. Webster lost caste and popularity in 
his own State for his action, and Southern men who acted 

1 Written about 1891 or 1892. 

' Webster's Works, Vol. 5, p. 324 et seq. 



The Annexation of Texas 57 

with him likewise lost position in their States. The result of 
the agitation was that the great compromise of 1850 was 
made. California was admitted, the Texas boundary ad- 
justed, and territorial governments for Utah and New Mex- 
ico framed on the principle of non-intervention by Congress 
in reference to slavery. The sectional storm was hushed. 
But the silence and peace were deceptive. They were not the 
results of public acquiescence and satisfaction. It was that 
condition of quiet which is devoted to preparation for a re- 
newal of the conflict about to take place. 

The second session of the thirty-first Congress met De- 
cember 2, 1850. The President (Fillmore) in his message 
had spoken of his duty to enforce the laws, including the 
fugitive slave law. 

On the seventh day of the session Mr. Giddings assailed 
the President and that portion of his message with vigor and 
bitterness. He said that if a fugitive slave were returned, 
all knew he would be sent to a sugar plantation where he 
could not live five years, or to a cotton plantation where he 
could not live seven. This incredible statement was eagerly 
accepted by the people of the North, notwithstanding that if 
it had been true, slavery before that time would have been 
abolished by the inhuman action of the slaveholders them- 
selves. 

Mr. Giddings further said : 'The men of the North, who 
look upon this as murder, would as soon turn out and cut the 
throats of the defenseless Negro as to send him back to a 
land of chains and whips. . . . The man who should assist 
in the capture of a fugitive would be regarded by us as guilty 
as he under whose lash the victim expires." He thought that 
the capture of a fugitive slave to send him to the South to die 
under a torture of five years was worse than ordinary murder. 
Referring to Dr. Webster, the murderer of Dr. Parkman, 
and to the great statesman, Daniel Webster, Mr. Giddings 
said : "During last summer two distinguished gentlemen of 
the same name occupied much of the public attention. One 
was said to have committed murder, and the other to have 
procured the passage of this [fugitive slave] law. One was 
hanged for his crime; the other, for his efforts, taken to the 
Executive Cabinet. One destroyed the life of an individual ; 
the other contributed his efforts for the passage of this law, 



58 The Political History of Slavery in the United States 

which must consign hundreds, perhaps thousands, to prema- 
ture graves. I, sir, cannot speak for others; but for myself 
I would rather meet my final Judge with the guilt of him who 
has gone to his final account than of him who now sits in 
yonder Cabinet." 

Proceeding to discuss union and disunion, he said : "Well, 
sir, I do not say that Northern men have lost all love and 
regard for the Union. But one thing is certain, that they do 
not feel that reverence for it which once was so prevalent 
among us. They feel, sir, less attachment to it than for- 
merly. They now speak of dissolution without hesitation. 
And if the Union be exerted for their degradation, by sub- 
jecting them to the provisions of this fugitive law, they would 
greatly prefer to see it dissolved. On this subject I feel no 
compunctions. 

"More than eight years since, with twenty (20) other 
members of this body, I addressed the people of the free 
States, foretelling this state of things." 

Mr. Giddings then proceeded to quote from this address 
as follows: "We hesitate not to say that annexation (of 
Texas) effected by any act or proceeding of the Federal 
Government, or any of its departments, would be identical 
with dissolution (sic). It would be a violation of our na- 
tional compact, its objects and designs, and the great elemen- 
tary principles which entered into its formation, of a char- 
acter so deep and fundamental, and would be an attempt to 
eternize an institution and a power so unjust in themselves, 
so injurious to the interests and abhorrent to the feelings of 
the people of the free States as, in our opinion, not only in- 
evitably to result in a dissolution of the Union, but fully to 
justify it. And we not only assert that the people of the 
free States ought not to submit to it, but we say with confi- 
dence, they will not submit to it." l Mr. Giddings stated that 
ex-President John Quincy Adams was one of the signers of 
this paper. 

About this time we begin to hear first of a law binding 
the political action of the American people that is higher 
than the Constitution. Hitherto, so far as we have observed, 
the assailants of the South preferred to act in professed 
obedience to that instrument. Their actions, however con- 
1 Congressional Globe, 2d Session, 31st Congress, pp. 15, 16. 



The Annexation of Texas 59 

trary to that instrument, they believed, or professed to be- 
lieve, were in obedience to it and in many instances, as was 
claimed, were demanded by its terms. As the first instance 
of the higher law we have noted in the proceedings of Con- 
gress we call attention to a petition for the repeal of the 
fugitive slave law that was sent to Congress by the Quakers 
of Indiana, who based their action on the assertion that "there 
is a higher law than any human enactment." 

On a motion to receive this petition with a view to refer- 
ring it to the Judiciary Committee with instructions to report 
a bill repealing the fugitive slave law, there were sixty-eight 
votes in the affirmative. 



ORGANIZATION OF TERRITORIAL GOVERNMENTS IN KANSAS 
AND NEBRASKA 

In the thirty-third Congress, 1853-5, came up the organiza- 
tion of territorial governments in Kansas and Nebraska. The 
Committee on Territories in the Senate, through Mr. Doug- 
las, their chairman, undertook to make the legislation on the 
subject of slavery conform to the principle of non-interven- 
tion recognized in the compromise of 1850. The principle 
seems to have received the endorsement of the country in the 
Presidential election of 1852. General Pierce, the candidate 
of the Democratic party, was understood to stand upon that 
compromise as a finality. General Scott, the Whig candi- 
date, was supposed to be doubtful on that subject. But both 
parties in their national platforms had declared that com- 
promise was to be adhered to in principle and in substance. 
The result was an overwhelming victory for Pierce, he re- 
ceiving two hundred and fifty-four electoral votes to Scott's 
forty-two, and carrying all the states except Vermont, Massa- 
chusetts, Tennessee, and Kentucky. 1 

The bill for territorial governments in Kansas and Ne- 
braska declared the eighth section of the Act of 1820, au- 
thorizing the people of Missouri to form a Constitution (the 
section prohibiting slavery north of 36 30'), inconsistent 
with the principles of the compromise of 1850, and, there- 
fore, inoperative. Immediately on the introduction of this 

1 Cooper's "American Politics," Book V, p. 7. 



60 The Political History of Slavery in the United States 

measure an effort, in a large degree successful, was made to 
renew the sectional controversy. 

And here again it is to be remarked that the agitation 
seems to have been wholly unnecessary. These Territories, 
as in fact all others then belonging to the United States, by 
physical geography and by natural laws were unfitted for 
slavery. A further exclusion by Act of Congress would not 
have been more effective. In the language of Mr. Webster 
before quoted, it would have been but unnecessarily reaf- 
firming an ordinance of God. As a matter of practical poli- 
tics it seems now to have been wholly a useless agitation 
from which nothing ever came but sectional bitterness, — a 
further alienation between the people of the North and the 
people of the South. That the South should insist on legis- 
lation which, on its face, would be equal and fair, and would 
give to her citizens an equal legal opportunity of settling in 
these Territories, was the result of a mere sentiment, — a senti- 
ment, however, likely to prevail among a spirited and free 
people, jealous of their rights and liberties. That the North 
should insist on legislative exclusion, if not intended as a 
"taunt and a reproach," to quote Mr. Webster, was wholly 
unnecessary. But both sides were excited. The long and 
bitter controversy on the subject had left traces in the pas- 
sions and feelings of men that seemed ineradicable. 

In the minds of many Northern men this so-called Mis- 
souri compromise suddenly acquired sanctity instead of the 
reprobation formerly attached to it. In the minds of many 
Southern men there came a strange delusion born of hope 
and fear, — the apprehension of danger to their domestic in- 
stitutions and the vain hope of preserving them. The hope 
was that it was possible to extend slavery into these Ter- 
ritories, and thus furnish an additional defense to assaults 
now plainly intended. Here again the debates show that the 
controversy grew out of the same old cause, — the desire for 
political power on both sides. 

Mr. Seward, in his speech delivered in the Senate on 
February 17th, 1854, showed that this was the groundwork 
of the controversy. He said : "A rivalry for political as- 
cendency was soon developed; and, besides the motives of 
interest and philanthropy .... there was now on each side 
a desire to increase, from among the candidates for admission 



The Annexation of Texas 6 1 

into the Union, the number of States in their respective 
classes," — as slaveholding or non-slaveholding, — "and so their 
relative weight and influence in the Federal Councils." 

Mr. Seward, proceeding from this exposition of the views 
and aspirations of both parties to express himself as to the 
apprehended course of the South, said : "But I am well as- 
sured also, on the other hand, that if ever the slaveholding 
States shall multiply themselves and extend their sphere so 
that they could, without association with the non-slaveholding 
States, constitute of themselves a commercial republic, from 
that day their rule through the Executive, Judicial, and Leg- 
islative powers of this Government will be such as will be 
hard for the non-slaveholding States to bear; and their pride 
and ambition, since they are congregations of men, and are 
moved by human passions, will consent to no union in which 
they shall not so rule." x 

Like apprehensions were manifested by Southern men as 
to Northern supremacy. Let history answer whether their 
apprehensions have been realized! 

1 Appendix to the Congressional Globe, 33d Congress, 1st Session, 
p. 150. 



CHAPTER VII 

WAS THE MISSOURI COMPROMISE VIOLATED BY THE SOUTH? 

At this point it is proper to inquire as to the truth of the 
alleged violation of faith by the South. 

As has been stated, the opposition to the non-intervention 
provisos of the Kansas and Nebraska bill relied greatly on 
the Missouri compromise. They charged that the bill was a 
breach of faith, a violation of a solemn compromise between 
two sections. The speech of Mr. Seward, which was made 
in opposition to the bill, and from which quotations have 
been made, had for its motto on the title page, "Freedom 
and Public Faith." 

Whoever shall desire to understand this matter fully 
should read carefully the great speech of Mr. Douglas de- 
livered in the Senate on the 4th day of March, 1854. 1 We 
have space only to notice a few salient points in this great 
speech. 

Mr. Douglas showed that under the alleged compromise 
of 1820, in which slavery was prohibited north of 36 30', 
Missouri was never admitted into the Union; that the North, 
after having obtained the enactment of that prohibition, re- 
fused to admit her as a State on the ground hereinbefore 
stated, that is, that the first alleged compromise was expressly 
repudiated by the North in the vote on Mr. Mallory's amend- 
ment requiring the State to abolish slavery in her Constitu- 
tion; that on this the North, by a vote of 61 to 33, nearly 
two to one, refused admission to Missouri on the terms of the 
alleged compromise ; that a new compromise, gotten up under 
the auspices of Mr. Clay, was found necessary; that under 
this the admission was secured ; that the State of New York, 
after the passage of the alleged compromise of 1820, renewed 

Appendix to the Congressional Globe, 1st Session, 33d Congress, 
p. 325 et seq. 

62 






Was the Missouri Compromise Violated by the South? 63 

the resolution of instructions to her Senators to vote against 
the admission of Missouri, and that those former resolutions 
instructed her Senators to oppose admission as a State into 
the Union of slave territory not confined within the original 
boundaries of the United States, without making the prohi- 
bition of slavery therein an indispensable condition of admis- 
sion. 1 

He also showed that in 1848 he proposed the compromise 
line of 36 30' to the Oregon bill, and it was voted down in 
the House; that in 1850 a proposition was made to make 
36 30' the southern boundary of Utah, with no reference to 
slavery, however; but that John P. Hale, the leader of the 
Free Soilers in the Senate, opposed it in these words : "I 
wish to say a word why I shall vote against the amendment. 
I shall vote against 36 30' because I think there is an impli- 
cation in it. I will vote for 37 or 36 either, just as it is 
convenient, but it is idle to shut our eyes to the fact that 
here is an attempt in the bill — I will not say it is the intention 
of the mover — to pledge the Senate and Congress to the 
imaginary line of 36 30' because there are some historical 
recollections connected with it in regard to this controversy 
about slavery. I will content myself with saying that I never 
will, by vote or speech, admit or submit to anything that may 
bind the action of our legislation here to make the parallel of 
36 30', the boundary line between slave and free terri- 
tory." 

Mr. Douglas also showed that in 1836, when Arkansas 
applied for admission into the Union, it was opposed by 
Northern men, forty-nine of them voting against admission; 
that one of them, Mr. Hand, of New York, said: "I am 
aware it will be, as it has already been, contended that by 
the Missouri compromise, as it has been preposterously 
termed, Congress has parted with its right to prohibit the in- 
troduction of slavery into the territory south of 36 30' north 
latitude. There are, in my mind, insuperable objections to 
the soundness of that proposition. In the first place, there 
was no compromise or compact whereby Congress surren- 
dered any power, or yielded any jurisdiction; and in the 
second place, if it had done so, it was a mere legislative act, 

Appendix to the Congressional Globe, 1st Session, 33d Congress, 
p. 325 et seq. 



64 The Political History of Slavery in the United States 

that could not bind their successors ; it would be subject to a 
repeal at the will of any succeeding Congress." x 

Mr. Douglas contrasted the resolutions of New York, 
hereinbefore noted, as opposing the admission of Missouri, 
with resolutions of the same State in which the Act of 1820 
was called a compromise, and which denounced the Kansas- 
Nebraska bill as in derogation of truth, a gross violation of 
plighted faith, and an outrage and an indignity upon the free 
States. 

The bill passed. In 1855 there was formed the short- 
lived American party, yet the agitation of the slavery ques- 
tion still continued. The Republican party was formed. 
There was trouble and bitter controversy about the admis- 
sion of Kansas. . 

THE PRESIDENTIAL ELECTION OF 1 856 

There were three parties in the Presidential election of 
1856 — the Democratic, the Whig, or American, and the 
newly formed Republican party. The Republican Conven- 
tion met in pursuance of a call on all those who were opposed 
to a repeal of the Missouri compromise and the policy of ex- 
tending slavery in the Territories, and who favored the ad- 
mission of Kansas as a free State and restoring the action of 
the Federal Government to the principles of Washington and 
Jefferson. 

The Republican party was exclusively a Northern party, 
and it illustrates the selfishness of human nature, as well as 
the lust for political power and sectional supremacy, that the 
people of the Northern States should so soon have forgotten 
the principles to which they had adhered for nearly the whole 
life of the republic, — denying the power of Congress to admit 
new States from territory acquired since the adoption of the 
Constitution, — and that the convention should demand the 
immediate admission of Kansas under her free State Consti- 
tution. In 181 1 the admission of Louisiana, being a part of 
the territory acquired from France, was deemed sufficient to 
dissolve the Union because it was unwarranted by the Con- 
stitution and a violation of the compromises of that compact. 

1 Appendix to the Congressional Globe, 1st Session, 33d Congress, 
P- 335- 



Was the Missouri Compromise Violated by the South? 65 

In 1 814 the same opposition on constitutional grounds to the 
admission of States from territory not originally owned by 
the United States was manifested. In 1820 and 1821 the ad- 
mission of Missouri was opposed on the same grounds. In 
1845 the same principles were urged in opposition to the an- 
nexation of Texas. Now, however, the immediate admission 
of Kansas, — adjoining Missouri, and formed of territory ac- 
quired as Missouri was, as a part of the Louisiana Purchase, 
— was demanded in a party platform and made even one of 
the elements of the formation of a sectional party in that sec- 
tion of the Union that had all along denounced as unconsti- 
tutional the admission of States acquired as Kansas was. It 
is not intended by what has been said to cast the reproach of 
a wilful violation of principles long entertained on those who 
thus changed position. The inconsistency is noted in order 
to make more clear the great truth that from the beginning 
the lust of power was the mainspring of the agitation of the 
slavery question, though motives of philanthropy were inter- 
mingled to an extent that gave force, persistency, and an 
extra zeal to the agitators. 

The Democratic party placed itself on non-intervention as 
to slavery as recognized in the compromise of 1850, which 
they asserted had been confirmed by both the Democratic and 
Whig parties and ratified by the people in the Presidential 
election of 1852. 

As to Kansas, the declaration was of the right of the peo- 
ple of the Territories, whenever the number of the inhabitants 
justified it, to form a Constitution admitting or excluding 
slavery, and to be admitted on terms of perfect equality with 
the other States. 

The Whig platform denounced both the Republican and 
the Democratic parties as sectional, claiming that the former 
represented only the Northern States and that the latter "ap- 
pealed mainly to the passions and prejudices of the Southern 
States." 

Buchanan, the Democratic nominee, received 174 elec- 
toral votes, 1,838,169 popular votes, and carried 19 States. 
Fremont, the Republican nominee, received 114 electoral 
votes, 1,341,264 popular votes, and carried eleven states, all 
Northern. Fillmore, the Whig and American nominee, re- 
ceived 8 electoral votes, 874,534 popular votes, and carried 



66 The Political History of Slavery in the United States 

one state, — Maryland. 1 The Northern States voting for Bu- 
chanan were Pennsylvania, New Jersey, Indiana, Illinois, 
Iowa, Wisconsin, and California. 2 

Buchanan received 496,905 votes more than Fremont, 
and 377,629 less than Fillmore and Fremont together. Still 
the popular vote in the North for Fremont exceeded that of 
Buchanan, and the result was a Pyrrhic victory for the Dem- 
ocrats. The lesson of the election was that a party organized 
solely on the ground of opposition to the institutions of the 
South had in its first race carried a majority of the Northern 
States, and had received the votes of a majority of the North- 
ern people, whilst the Democrats had carried every Southern 
State except one, and that had been cast for the conservative, 
Mr. Fillmore. Here indeed was the "geographical line, co- 
inciding with a marked principle, moral and political," which, 
Mr. Jefferson thought, when "once conceived and held up to 
the angry passions of men will never be obliterated, and 
every new irritation will mark it deeper and deeper." 3 That 
great statesman regarded such a line of division of parties as 
the knell of the Union, and "like a fire-bell at night, it had 
awakened and filled him with terror." 4 These words were 
spoken with reference to the agitation of the slavery question 
on the admission of Missouri. 

If true then — and who can doubt that they were? — with 
how much force they must have struck the thoughtful men of 
1856. The question, as Mr. Jefferson said, had been hushed 
for the moment, but this was a reprieve only, not a final sen- 
tence. 

THE DRED SCOTT CASE 

The South saw the deep significance of the situation, and 
was profoundly impressed with the impending danger. Yet 
some hope came within a few months from an unexpected 
quarter. The Supreme Court made its decision in the cele- 
brated Dred Scott case. 5 The South had long maintained 

1 Cooper's "American Politics," Book V, p. 7. 

2 Ibid. 

' Letter to John Holmes, "Jefferson Memoirs," Vol. IV, p. 323, and 
Randall's "Life of Jefferson," Vol. Ill, p. 456. 
4 Ibid. 
6 19 Howard's Reports. 



Was the Missouri Compromise Violated by the South? 67 

that the Federal Government (through any of its organs) 
was not the final judge of the extent of its own powers. This 
view was put forth in the Virginia and Kentucky resolutions 
of 1798-9. On the contrary, the Northern States, which 
answered these resolutions, took the position that the Supreme 
Court was the final arbiter. The South, however, did not 
hold, — and, so far as I know, no eminent Southern statesman 
had ever held, — to the position that the Federal Govern- 
ment itself was not bound to abstain from the exercise of a 
power that the Supreme Court held did not belong to it. The 
South was willing that the Supreme Court decision should 
bind the Federal Government in the denial of a power, though 
it should not bind the States in affirming a power that the 
States alleged did not exist. The theory of the North, how- 
ever, was, in the main, that the Supreme Court was the final 
judge. 

This celebrated decision held two points of immense in- 
terest to the South. 

1. That Congress had no power to prohibit slavery in 
the Territories. 

2. That persons of African descent, whose ancestors 
had been imported into the United States as slaves, were not 
citizens. 

The decision did not settle these questions in the minds 
of the politicians. It but added fuel to the flame of sectional 
excitement. It was denounced everywhere in the North. 
Its binding effect on Congress was denied. It was admitted 
only that it bound the parties to the suit on the mere question 
of right to the thing in dispute between them in that very 
case. This was the view of Mr. Lincoln. So far as I have 
observed, this is the first instance in which it was seriously 
maintained by any political party or by any considerable 
number of statesmen that Congress could rightfully exercise 
a power denied to it by the Supreme Court ; though there are 
instances in which careful and conservative statesmen consid- 
ered that, even on constitutional grounds, it was right to de- 
cline to exercise a power conceded by the Supreme Court to 
be constitutional. If Congress should exercise the power 
to abolish or prohibit slavery in a territory, it is evident that 
in every case involving the freedom of a slave under that law 
the Supreme Court, whilst holding the views announced in 



68 The Political History of Slavery in the United States 

the Dred Scott case, would decide that freedom was not con- 
ferred, and hence the only effect of such a law would be to 
involve in an interminable litigation parties asserting a right 
to slaves. 



RE-ORGANIZATION OF THE SUPREME COURT 

This view was not unobserved by the statesmen of the 
North who determined to exercise the power, notwithstand- 
ing the decision of the Supreme Court denying it. Mr. Sew- 
ard, at an early day after the decision, gave notice of a bill 
to reorganize the Supreme and Circuit Courts of the United 
States in such a way as to equalize the representation of the 
several States in the courts as far as possible according to 
their Federal population, and to secure greater facility and 
despatch of business. 1 

What Mr. Seward meant by this bill, to secure represen- 
tation of the States in the Supreme Court according to the 
Federal population, is not difficult to divine. In the first 
place, the majority of the judges were to be from the North, 
and what he expected from the Northern judges is plainly 
inferable from what he said in his speech of March 3, 1858, 
on the subject of the decision in the Dred Scott case. He 
represented that after Mr. Buchanan's election, but before he 
came into office, "he approached or was approached by the 
Supreme Court of the United States"; that "the Court did 
not hesitate to please the incoming President by seizing this 
extraneous and idle forensic discussion [of the Dred Scott 
case] and converting it into an occasion for pronouncing an 
opinion that the Missouri prohibition was void; and that, by 
force of the Constitution slavery existed .... in all the 
Territories of the United States, paramount to any popular 
sovereignty within the Territories, and even to the authority 
of Congress itself." He described the appearances of the 
judges at the inauguration in their robes, "which yet exacted 
public reverence." He said, "The people, unaware of the 
import of the whisperings carried on between the President 
and the Chief Justice, and imbued with reverence for both, 

appendix to the Congressional Globe, 1st Session, 35th Congress, 
P. 77- 



Was the Missouri Compromise Violated by the South? 69 

filled the avenues and gardens far away as the eye could 
reach." 1 

The Chief Justice alluded to was the venerable Taney, 
and the court itself, thus ridiculed and denounced, was no less 
illustrious for the character and abilities of its members than 
it had been in any former period of its history. Mr. Seward 
was then the acknowledged leader of the Republican party. 
In learning, genius, and political skill he was without a peer. 
In influence in shaping and directing the policies of the party 
and public opinion in the North, he was without a rival. 2 

1 Congressional Globe, 1st Session, 35th Congress, p. 941. 

2 It appears, however, from the correspondence of President Bu- 
chanan, that there had been an interchange of letters between him- 
self and two members of the Supreme Court, Mr. Justice Catron 
and Mr. Justice Grier (to which correspondence Chief lustice Taney 
was confessedly privy), relative to the Dred Scott case, a few weeks 
prior to its formal announcement by the Supreme Court, which was 
made shortly after the inauguration of Mr. Buchanan, on March 4, 
1857. See "The Works of James Buchanan," collected and edited by 
John Bassett Moore, Vol. X (1910), pp. 106-108. 

Austin Baxter Keep. 



CHAPTER VIII 

LINCOLN AND THE DOUGLAS DEBATE 

In this same year, 1858, came on the great contest be- 
tween Mr. Douglas and Mr. Lincoln for the United States 
Senatorship from Illinois. This was signalized by the ability 
and high character of the contestants and the importance of 
the questions involved. These questions related alone to 
slavery and to the status of the free Negro. Mr. Lincoln 
denounced the Dred Scott decision, claiming that it had no 
binding force except between the parties to it, and he avowed 
his opinion that slavery should be prohibited in the Territo- 
ries, that decision to the contrary notwithstanding. He mani- 
fested also a deep opposition to slavery everywhere, though 
renouncing all intention to interfere with it in the States by 
direct Congressional action. He also avowed his wish to 
have the free Negroes colonized ; and declared his firm op- 
position to all claims set up for the Negro for social and po- 
litical equality. He avowed that there was a physical 
difference between the two races that would forever forbid 
such equality, and he affirmed that, inasmuch as it was cer- 
tain that the two races could not live together on terms of 
equality, he was for assigning the superior place to the 
whites. 

In his speech at Springfield in 1858 Mr. Lincoln said: 
"Under the operation of this policy [non-intervention] that 
agitation not only has not ceased but is continually aug- 
mented. In my opinion it will not cease till a crisis shall 
have been reached and passed. A house divided against it- 
self cannot stand. I believe this government cannot endure 
permanently half slave and half free. I do not expect the 
government to fall, but I do expect it will cease to be divided. 
It will become all one thing or all the other. Either the op- 
ponents of slavery will arrest the future spread of it, and 
place it where the public mind shall rest in the belief that it 

70 



Lincoln and the Douglas Debate 7 1 

is in the course of ultimate extinction, or its advocates will 
push it forward till it shall become alike lawful in all the 
States, old as well as new, North as well as South." 

THE IRREPRESSIBLE CONFLICT 
ADVANCE IN ANTI-SLAVERY VIEWS 

This quotation from Mr. Lincoln, with other evidences 
hereafter to be introduced, shows the advanced position that 
was now being taken by the North. In the beginning the 
slavery question had been debated more as a question of po- 
litical power. The moral aspect, though often presented, 
was subordinated to the other. It had all along, up to this 
time, been discussed on the concession that it was not to be 
interfered with in the States. In the Federal Convention, 
which framed the Constitution, Mr. Ellsworth said : "The 
morality and wisdom of slavery are considerations for the 
States themselves. . . . The old Confederation did not med- 
dle with this point [the importation of slaves], and I do not 
see any greater necessity for bringing it within the policy of 
the Union. . . . The States are the best judges of their par- 
ticular interests. . . . Let us not intermeddle." 

Mr. Gerry said : "We have nothing to do with the con- 
duct of the States as to slaves, but ought to be careful not to 
give any sanction to it [the slave trade]." In the controver- 
sies afterward as to Louisiana, Missouri, and Texas, and as 
to slave extension in the Territories, it was all along con- 
ceded that slavery was a State matter exclusively, nor was it 
intimated that there was such an incongruity between the in- 
stitutions of the States as to render their confederation im- 
possible, or that such an incongruity must be removed. 

Now, however, the pretensions of the anti-slavery men 
had been advanced. Whilst admitting the want of power to 
interfere with it in the States, it was affirmed that its ex- 
istence in some States constituted a "division of the house," 
which therefore could not stand ; and it was declared that 
the agitation would go on until the public mind should rest 
in the conviction that slavery was in the course of ultimate 
extinction, or until slavery should be established in the North- 
ern States. The Northern people were thus educated to 
believe that slavery was a national and not a State matter, 



72 The Political History of Slavery in the United States 

and if they would prevent its introduction among themselves, 
they must destroy it in the South; and as no one pretended 
that slavery should be extended to the North, the argument 
in effect was that it must be destroyed in the South. 

About this same time, — October, 1858, — Mr. Seward ex- 
pressed the same idea with great emphasis in his speech at 
Rochester in the following language : 

"Free labor and slave labor, — these antagonistic systems, — 
are continually coming into close contact, and collision re- 
sults. Shall I tell you what this collision means? They who 
think it is accidental, unnecessary, the work of interested or 
fanatical agitators, and therefore ephemeral, mistake the case 
altogether. It is an irrepressible conflict between opposing 
and enduring forces; and it means that the United States 
must and will, sooner or later, become either entirely a slave- 
holding nation or entirely a free labor nation. Either the 
cotton and rice fields of South Carolina and the sugar plan- 
tations of Louisiana will ultimately be tilled by free labor, and 
Charleston and New Orleans become marts for legitimate 
merchandise alone, or else the rye fields and wheat fields of 
Massachusetts and New York must again be surrendered by 
their farmers to slave culture and to the production of slaves, 
and Boston and New York become once more markets for 
trade in the bodies and souls of men." l 

SLAVERY IN THE 36TH CONGRESS 

The election for the Thirty-sixth Congress had put the 
Democratic party in a minority in the House, though the 
Republicans did not have an assured majority. The latter 
nominated Mr. Sherman [afterwards Senator] for Speaker. 
He never polled higher than one hundred and ten votes out 
of the one hundred and seventeen necessary for a choice. 
The contest for Speaker was long and bitter, extending to 
forty-four ballots, and over a period of about sixty days. 
On February ist, Mr. Pennington, of New Jersey, was 
elected. During the pendency of the election the debate in 
the House, which related entirely to the slavery question, was 
acrimonious and sectional beyond all former precedent. Mr. 
Sherman was charged with signing a recommendation of a 

1 Congressional Globe, ist Session, 36th Congress, p. 195. 



Lincoln and the Douglas Debate 73 

book called "The Impending Crisis," by Hinton R. Helper, 
of North Carolina. The book was intensely and bitterly sec- 
tional and anti-slavery. Extracts from it were read and com- 
mented on in the debate, and it was claimed that the book 
incited servile war and bloodshed. Adopting language for 
the non-slaveholders of the South to the slaveholder, the 
book reads : "Henceforth, sirs, we are demandants, not sup- 
pliants; we demand our rights, nothing more nor less. It is 
for you to decide whether we are to have justice peaceably or 
by violence, or, whatever consequences may follow, we are 
determined to have it one way or the other." 

From other extracts read in the debate it appears that the 
book recommended a thorough organization of non-slave- 
holders in the South on the following basis, among other 
things of like character : 

i. Never to vote for any one for office who advocates 
the retention or perpetuation of slavery. 

2. No cooperation with pro-slavery politicians, no fel- 
lowship with them in religion, no affiliation with them in so- 
ciety. 

3. No patronage to pro-slavery merchants, lawyers, or 
editors, or hotels using slave waiters; and no hearing of pro- 
slavery preachers. 1 

The book had been endorsed by seventy Republican mem- 
bers of Congress. 

1 Congressional Globe, 1st Session, 36th Congress, pp. 16-17. 



CHAPTER IX 

JOHN BROWN'S INVASION OF VIRGINIA 

The invasion of Virginia by John Brown, which had oc- 
curred but a few months before the meeting of Congress, was 
also the subject of bitter crimination and recrimination. It 
was charged by the Southern Members that this invasion was 
the direct result of the teachings by the Republican party of 
the "irrepressible conflict" views announced by their leaders. 
This was denied by the Republicans and the invasion was 
condemned. Nevertheless, many expressions of Northern 
men and the proceedings of several meetings and conventions 
held in the North were quoted to show that the invasion met 
with the approval of many persons in that section. 

Mr. English, of Indiana, caused to be read proceedings 
of the meeting held in Chicago, in which sympathy for John 
Brown was expressed, the fugitive slave law denounced, and 
the doctrine that men are bound to obey civil enactments that 
in their judgment obviously contravene the requirements of 
the laws of God was condemned. Of this character it was 
resolved was the fugitive slave law, and that "obedience to it 
would be treason to God and man." Compromise with slave- 
holders was severely condemned, and the invasion at Harper's 
Ferry was apologized for on the ground that "oppression 
maketh even a wise man mad," and that it was no matter of 
surprise that the slaves and sometimes those who remem- 
bered them in bonds, as bound with them, should be driven 
to rash resistance and revenge; that they deplored (not con- 
demned) the rising, and that they would prevent a repetition 
of it by concentrating the benevolent efforts of all good men 
upon the use of moral and peaceful means for the abolition 
of slavery. A speaker eulogized Brown as a man of God 
with courage like Leonidas at Thermopylae. And others de- 
clared in favor of shooting slaveholders. 1 

General Logan presented and caused to be read the pro- 

1 Congressional Globe, ist Session, 36th Congress, p. 231. 

74 



John Brown s Invasion of Virginia 75 

ceedings of a meeting at Aurora, Illinois, breathing* this same 
spirit. 1 

Mr. Smith, of Virginia, read an editorial from the New 
York Evening Post, then as now one of the ablest and most 
influential papers in the Union, in which it spoke of the popu- 
lar feeling manifested at the North on account of the execu- 
tion of Brown, as proving the wisdom of his own remark 
that he "could in no way so well serve the cause of abolition 
as by being hung for it." The paper also alluded to the mani- 
festations in that section of respect for Brown's name and 
memory. — "the devotion of the hour of his death to prayer 
in a great number of churches, the tolling of bells in many 
towns, the firing of minute-guns in others." 2 

The fact was also presented that at Dover, New Hamp- 
shire, in a Unitarian church the minister declared : "If an 
honest expression of the wishes of the North could be taken 
to-morrow, John Brown would be the people's candidate for 
the next Presidency, and he would receive a million votes ;" 
and, "The gallows from which he ascends into Heaven will 
be in our politics what the cross is in our religion." 3 In a 
Baptist church in Boston a meeting of sympathy for Brown 
was held, at which over two thousand were present, and 
prayer was offered for Brown; and in a meeting at the Old 
South church the minister declared that Brown was an in- 
strument in the hands of Providence, and God had used him 
"as His sword to inflict a wound on the slave power." 

Mr. Smith read from Wendell Phillips : "Every human 
being is bound to judge the righteousness of a law before he 
obeys it," and that "John Brown had a right to judge of 
the slave laws of Virginia on this account;" and from Mr. 
Cheever : "Under the Constitution of the United States and 
by the word of God, John Brown had a perfect right to pro- 
claim liberty to the enslaved and to labor for their deliver- 
ance. If the Constitution had forbidden him to do this, while 
the word of God commanded him, then he would have been 
bound to obey the word of God, anything in the Constitution 
to the contrary notwithstanding." 4 

1 Congressional Globe, ist Session, 36th Congress, p. 233. 

2 Ibid., p. 263. 
* Ibid., p. 263. 
4 Ibid., p. 263. 



76 The Political History of Slavery in the United States 

Mr. Vallandigham presented a circular that he said had 
been extensively circulated throughout the Northern, West- 
ern, and Southern States, — a circular that contained a plan of 
an association to be formed in the North and West for carry- 
ing on hostilities against the South. 

The circular declared : 

"It is the duty of the non-slaveholders of this country, in 
their private capacity as individuals, without asking permis- 
sion or awaiting the movements of the Government, to go 
to the rescue of the slaves from the hands of their oppres- 
sors." 

It recommended the forming of associations throughout 
the country for the purpose of raising money, for procuring 
military equipments, forming and disciplining military com- 
panies, detaching the non-slaveholders in the South from the 
slaveholders, for "informing the slaves [through emissaries] 
of the plan of emancipation, that they may be prepared to co- 
operate" ; and after sufficient preparation "then to land mili- 
tary forces (at numerous points at the same time) in the 
South, who shall raise the standard of freedom, and call to it 
the slaves and such free persons as might be willing to join" 
in the movement. 

The circular concludes : "Our plan then is — To make 
war (openly or secretly, as circumstances may dictate) upon 
the property of the slaveholders and their abettors, — not for 
its destruction, if that can easily be avoided, but to convert 
it to the use of the slaves. If it cannot be thus converted, 
then we advise its destruction. Teach the slaves to burn their 
masters' buildings, to kill their cattle and horses, to conceal 
or destroy farming utensils, to abandon labor in seed-time 
and harvest, and let crops perish. Make slavery unprofitable 
in this way if it can be done in no other. 

"2. To make slaveholders objects of derision and con- 
tempt, by flogging them whenever they shall be guilty of 
flogging their slaves." 1 

The Southern senators and representatives were excited 
and exasperated. The excitement of the Northern members 
was somewhat allayed by the consciousness of having at 
length attained that political power that enabled the North 
to do as it willed on all subjects, and of the fact that the 

1 Congressional Globe, 1st Session, 36th Congress, p. 161. 






John Broun s Invasion of Virginia TJ 

Southern power would never thereafter be strong enough 
either for aggression or for defense. That they contemplated 
an early destruction of slavery was evident from the declara- 
tions of Mr. Lincoln and Mr. Seward above quoted. They 
felt that such abolition would not harmfully affect them, since 
from many of the Northern States free Negroes were 
directly excluded by State laws, and from the most of them 
by the laws of climate and physical geography. They felt 
that serenity that comes from a knowledge that however 
disastrous a large free Negro population might be to the peo- 
ple of the South, they could, — as Mr. Lincoln said they might, 
in his message of December, 1862, — "in any event decide for 
themselves whether they would receive them," and they could 
resort to laws even more rigorous than those already existing, 
by which, as Mr. Dawes (afterward a senator) in his letter 
of September 26, 1856, to W. C. Neil, said, they could "dis- 
franchise, disable, and drive out the free Negroes from their 
borders." 

On the other hand, the Southern members felt that ex- 
asperation and excitement that came naturally from the ap- 
prehension of a momentous event then imminent, to divert 
which the power of the South was constantly and daily di- 
minishing; and the more so, since they felt that the blow 
aimed at their section came from confederates under a Con- 
stitution that gave no power to inflict it. One of the most 
conservative Representatives used this language early in the 
debate (Lamar's speech) : 

"I am no disunionist per se. I am devoted to the Consti- 
tution of this Union, and so long as this Republic is a great 
tolerant Republic, throwing its loving arms around both sec- 
tions of the country, I, for one, will bestow every talent God 
has given me for its promotion and its glory. [Applause.] 
Sir, if there is one idea touching merely human affairs, which 
gives me more of mental exultation than another, it is the con- 
ception of this grand Republic, this great union of sover- 
eign States, holding millions of brave, resolute men in peace 
and order, not by brute force, not by standing armies ; indeed, 
by no visible embodiment of law, but by the silent omnipo- 
tence of one great, grand thought, — the Constitution of the 
United States. [Applause.] That Constitution is the life 
and soul of this great Government. Put out that light, and 



78 The Political History of Slavery in the United States 

where is 'that Promethean heat can its light relume' ? That 
is our platform. We stand upon it. We intend to abide by- 
it and to maintain it, and we will submit to no persistent viola- 
tion of its provisions. I do not say it for any purpose of 
menace, but for the purpose of defining my own position. 
When it is violated, persistently violated, when its spirit is 
no longer observed upon this floor, — I war upon your govern- 
ment, I am against it. I raise then the banner of secession, 
and I will fight under it as long as the blood flows and ebbs 
in my veins. [Applause.]" x 

This speech is a fair statement of the Southern position 
at that time. 

On the other hand, there were avowals, both in Congress 
and in the Northern press, to resist by force all attempts at 
disunion. 

Mr. Smith, of Virginia, quoted in the debate an editorial 
in the leading political newspaper of New York, the reputed 
organ of Mr. Seward, the Courier and Enquirer, as follows : 

"And the South now understands that if any portion of 
this great Confederacy, whether it be the East or the West, 
the North or the South, attempts to withdraw from the 
Union, it will be promptly whipped, — ay, whipped into sub- 
jection. . . . Should disunion raise its head at the South, 
John Brown has taught the world how much opposition from 
that quarter is really worth. If seventeen fanatics, led on by 
a madman, could hold in subjection a town containing two 
thousand Virginians, and keep at bay whole regiments of 
Virginia militia who, even under the eye of their Governor, 
dared not attack their invaders, but stood by and saw twelve 
United States Marines make the attack and capture in ten 
minutes, what would these same boastful soldiers do when 
confronted by Northern valour, banded together under the 
Constitution and bearing aloft the banner of the Union? 
Why, our seventh regiment alone, in such a cause, — the cause 
of the Union and the Constitution, — aided, as it would be, 
by the good men of the slave States, would promptly overrun 
every rebellious State of the South, and compel them to re- 
turn to their allegiance." 2 

Mr. Hickman, of Pennsylvania, informed the South that 

1 Congressional Globe, ist Session, 36th Congress, p. 45. 
a Ibid., p. 265. 



John Brown's Invasion of Virginia 79 

"the North will never tolerate a division of the territory. 
. . . that with all the appliances of art to assist, eighteen 
millions of men reared to industry, with habits of the right 
kind, will always be able to cope successfully, if it need be, 
with eight millions of men without these auxiliaries." x 

In the Senate, Mr. Davis, of Mississippi, replying to a 
charge that he was for disunion in case a Republican was 
elected President, said : "If .... a man were to seize the 
reins of Government, not to administer it according to the 
Constitution, but to pervert it to our destruction, to make 
this Government one of hostility to us, we would with the 
right hand redress our wrongs. That is my opinion now. If 
a man is willing to perjure himself by taking the oath to 
maintain the Constitution that he may get possession of the 
powers of this Government to subvert it to the ends of that 
platform [referring to Mr. Seward's Rochester speech be- 
fore quoted], I tell him, sir, that I have too much pride and 
confidence in the South to believe they ever will submit. For 
one single individual, I can speak, — I never will. If driven 
to exile, I prefer it to tame submission to a traitor and per- 
jurer who sought the possession of the Government in order 
that he might overthrow the Constitution." 2 

Mr. Davis, in replying to Mr. Wilson, of Massachusetts, 
referred to a speech made by the latter on the twentieth an- 
niversary of the establishment of Mr. Garrison's newspaper, 
— the Liberator, — and quoted from that speech : 

"For twelve years I have read the Liberator; and, sir, 
if I love liberty and loathe slavery and oppression, if I enter- 
tain a profound regard for the rights of man all over the 
globe, I owe it, in a great degree, to the labors of William 
Lloyd Garrison. [Prolonged applause.]" 3 

Mr. Davis then said that he had read the Liberator for 
some years and found standing firmly fixed, permanent, as 
the caption of the last column of the first page, these 
words : 

"No Union with slaveholders. 

"The United States Constitution is a covenant with death, 
and an agreement with hell." 

1 Congressional Globe, ist Session, 36th Congress, p. 120. 
3 Ibid., p. 577. 
8 Ibid., p. 577. 



80 The Political History of Slavery in the United States 

Under this caption he read from the quotation in the 
Liberator the following remarks from Mr. Channing: 

"There is some excuse for communities when, under a 
generous impulse, they espouse the cause of the oppressed in 
other States and by force restore their rights ; but they are 
without excuse in aiding other States in binding on men an 
unrighteous yoke. On this subject our fathers, in framing 
the Constitution, swerved from the right. We, their chil- 
dren, at the end of half a century, see the path of duty more 
clearly than they, and must walk in it. To this point the 
public mind has been long tending, and the time has come 
for looking at it fully, dispassionately, and with manly and 
Christian resolution." * 

And from the same speech of Mr. Wilson he read this 
extract : 

"We shall arrest the extension of slavery, and rescue the 
Government from the grasp of the slave power. We shall 
blot out slavery in the national capital. We shall surround 
the slave States with a cordon of free States. We shall then 
appeal to the hearts and consciences of men, and in a few 
years, notwithstanding the immense interests combined in 
the cause of oppression, we shall give liberty to the millions 
in bondage." 2 

Mr. Davis, in replying further to Mr. Wilson, who had 
alleged the early action of Massachusetts against traffic in 
slaves, quoted from Bradford's history of that State : "No 
law was ever passed under the provisional government [of 
Massachusetts] interdicting this most disgraceful traffic." In 
answer to Mr. Wilson's confession that Massachusetts had 
reduced a few Indians to slavery, Mr. Davis stated that white 
men had also been enslaved there. He referred to the pro- 
ceedings of a meeting that had been recently held in Massa- 
chusetts, and quoted from an address made on the occasion 
that Massachusetts was slaveholding from the beginning; she 
not only held and sold black slaves, but white slaves, too. 
The captives who were taken in the English civil wars were 
sent over and sold there as slaves. In 1659 her courts sen- 
tenced two white persons to be sold as slaves in the Bar- 
bados, or in Virginia, for the crime of siding with the 

1 Congressional Globe, 1st Session, 36th Congress, p. 577. 
•IWd.,p. 57a 



John Brown's Invasion of Virginia 8 1 

Quakers. As for Indian or Negro slavery, it existed in Massa- 
chusetts very early. The Puritans held slaves as early as 1637, 
a few years after the settlement. In 1641, we find the follow- 
ing" among Massachusetts laws : 

"There shall never be any bond slavery, villeinage, nor 
captivity among us, unless it be lawful captives taken in just 
wars [meaning, I suppose, the wars with the Indians], and 
such strangers as willingly sell themselves or are sold unto 
us ; and these shall have all the liberties and Christian usages 
which the law of God established in Israel requires." x 

Under this law a man was so absolutely free that he had 
the power of selling his unalienable, natural, and inherent 
right to liberty. 

This idea of men selling themselves into slavery early 
took root in New England and lived with great perti- 
nacity. The Constitution of Vermont, adopted in 1777, after 
declaring that all men are born equally free and independent, 
and have a natural, inherent, and unalienable right of enjoy- 
ing and defending liberty, prohibited the involuntary servi- 
tude of any person after full age (males 21, females 18) "un- 
less they are bound by their own consent after they arrive at 
such age, or bound by law for the payment of debts, dam- 
ages, fines, costs, and the like." This provision was repeated 
in tot idem verbis in the Constitution of 1793, and so far as 
we have learned, is a part of the Constitution to this day. 

"In 1705, by another act, slaves, for certain offenses, were 
to be sold out of the province. Any Negro or Mulatto who 
should strike any of the English, or other Christian nation, 
was to be severely whipped. The Provincial Congress of 
Massachusetts prohibited the enlistment of slaves in the army, 
thus showing that slavery legally existed there in May, 1775. 
The reason given is a curious one : that they were contending 
for the liberties of the colonies, and the admission into the 
army of any others but freemen would be inconsistent with 
the principles to be supported, and reflect dishonor on the 
colony." 2 

Mr. Iverson, of Georgia, read advertisements in the Mas- 
sachusetts Gazette of 1768, giving notice of sale at public 
auction of a "likely Negro man," "of a Negro man forty 

1 Congressional Globe, 1st Session, 36th Congress, p. 599. 

2 Ibid. 



82 The Political History of Slavery in the United States 

years old," "of a boy fourteen years old," "of a girl twelve 
years old," and of a "black Negro girl thirteen years old." 
These advertisements intermingled with the Negroes the 
sales of various articles of personal property, as Madeira 
wine, calicoes, border silks, linen, twistings, housings, hol- 
sters, and so on. 

It was not omitted to be urged by the Southerners that 
the fiercest opposition to slavery was not bottomed on any 
love for the Negro, but was a mere contest for political 
power; and it was confessed by them that political power, or 
the power to protect the South in the Union, was their ob- 
ject. 

Mr. Smith, of Virginia, read a letter from Mr. Jefferson 
to Mr. Holmes, of Massachusetts, dated April 22, 1820, in 
which it was said, in speaking of the Missouri question : "But 
this momentous question, like a fire-bell in the night, awak- 
ened and filled me with terror. I considered it at once as 
the knell of the Union. It is hushed, indeed, for the moment. 
But this is a reprieve only, not a final sentence. A geographi- 
cal line coinciding with a marked principle, moral and politi- 
cal, once conceived and held up to the angry passions of men, 
will never be obliterated ; and every new irritation will mark 
it deeper and deeper. I can say, with conscious truth, that 
there is not a man on earth who would sacrifice more than I 
would to relieve us from this heavy reproach, in any prac- 
ticable way. The cession of that kind of property, for so it 
is misnamed, is a bagatelle which would not cost me a second 
thought, if, in that way, a general emancipation and expatri- 
ation could be effected; and gradually, and with due sacri- 
fices, I think it might be. But, as it is, we have the wolf by 
the ears, and we can neither hold him, nor safely let him go. 
Justice is in one scale and self-preservation in the other. Of 
one thing I am certain, that as the passage of slaves from one 
State to another would not make a slave of a single human 
being who would not be so without it, so their diffusion over 
a greater surface would make them individually happier and 
proportionally facilitate the accomplishment of their eman- 
cipation by dividing the burden on a greater number of coad- 
jutors." 1 

Mr. Jefferson, in his letter to Mr. Pinckney, dated Sep- 

1 Congressional Globe, 1st Session, 36th Congress, p. 251. 



John Brown s Invasion of Virginia 83 

tember 30, 1820, said: "The Missouri question is a mere 
party trick;" and in his letter to LaFayette, December 26, 
1820, "It is not a moral question, but one merely of power." 1 

The increased happiness of the slaves that was to come 
from diffusion, it will be remembered, was pressed by Mr. 
Clay in the debates on the Missouri question. 

Mr. Smith read also an extract from a letter by Mr. Mad- 
ison to Mr. Monroe on the Missouri question, dated Febru- 
ary 20, 1820, in which it was said: "I find the idea is fast 
spreading that the zeal with which the extension (so called) 
of slavery is opposed has, with the coalesced leaders, an ob- 
ject very different from the welfare of slaves, or a check to 
their increase, and that the real object is, as you intimated, 
to form a new state of parties founded on local instead of 
political distinctions." 2 

Mr. Smith also read from Mr. Seward's speech at Cleve- 
land, Ohio, in which he stated : "Slavery can be limited to 
its present bounds ; it can be ameliorated ; it can be, and it 
must be abolished; and you and I can and must do it. . . . 
Correct your own error that slavery has constitutional guar- 
antees which may not be released and ought not to be re- 
linquished." 

He quoted from the proceedings of a public meeting in 
Massachusetts : "Resolved, That we would rejoice in a suc- 
cessful slave insurrection in the South, and that in killing a 
slaveholder to obtain freedom the slave is not guilty of any 
crime ; that the slaveholder should be made to dream of death 
in his sleep, and to apprehend death in his dish and teapot; 
that fire should meet him in his bed, and poison should meet 
him at the table." 3 

And he quoted from a conversational debate in the House 
of Representatives, between Mr. Dillet, of Alabama, and 
John Ouincy Adams, in which Mr. Adams assented to a 
charge by Mr. Dillet that he had stated that the abolition of 
slavery must come, though women and children should be 
slain, though blood should flow like water, though the Union 
should be destroyed, though the Government be broken up, 
though five millions of people of the South be slain. 

1 Randall's "Life of Jefferson," Vol. 3, pp. 457-8. 

2 Congressional Globe, 1st Session, 36th Congress, p. 252. 

3 Ibid., p. 260. 



84 The Political History of Slavery in the United States 

Mr. Adams, in his seat: "Five hundred millions! Yes, 
let it come." x 

From these specimens some idea of the nature and char- 
acter of the debate may be gathered. It is not needful to 
pursue them further. It may be as well, however, to remark 
that the geographical line spoken of by Mr. Jefferson had 
now become distinctly marked. The passions of men on 
both sides were profoundly excited. The Presidential elec- 
tion of that year was on hand. The supreme object seemed 
to be to win it. Mr. Seward was set aside by the Republican 
Convention and Mr. Lincoln nominated, with Hamlin, of 
Maine, for Vice-president. The Democrats divided, — one 
part nominated Mr. Douglas and Mr. Johnson; the other, 
Mr. Breckinridge and General Lane. Each section of the 
Democrats took one of its candidates from the North and one 
from the South. Both of the Republican nominees were from 
the North. The Union party nominated John Bell, of Ten- 
nessee, and Edward Everett, of Massachusetts. 

The Republican Platform, among other things, declared, 
"that the maintenance of the principles promulgated in the 
Declaration of Independence and embodied in the Federal 
Constitution 'that all men are created equal; that they are 
endowed by their Creator with certain inalienable rights ; that 
among these are life, liberty, and the pursuit of happiness; 
that to secure these rights governments are instituted among 
men, deriving their just powers from the consent of the gov- 
erned,' is essential to the preservation of our Republican in- 
stitutions; and that the Federal Constitution, the rights of 
the States, and the union of the States must and shall be 
preserved." 

In the fourth resolution, after an affirmance of the right 
of each State to order and control its own domestic institu- 
tions, there was an implied condemnation of the invasion of 
Virginia by John Brown, in these words : "We denounce 
the lawless invasion, by armed force, of the soil of any State 
or Territory, no matter under what pretext, as among the 
gravest of crimes." It demanded also the immediate admis- 
sion of Kansas, and declared in favor of the exclusion of 
slavery by Congressional enactment whenever such exclusion 
was necessary. 

1 Congressional Globe, 1st Session, 36th Congress, p. 258. 



John Brown s Invasion of Virginia 85 

The Douglas Democratic platform reaffirmed the plat- 
form adopted by the party at Cincinnati in 1856; and, recit- 
ing that there were differences among the party as to the 
powers of territorial Legislatures and of the powers and 
duties of Congress over the institution of slavery, professed 
that they would abide by the decisions of the Supreme Court 
on these questions of constitutional law. 

The Breckinridge Democratic platform affirmed the equal 
rights of all citizens of these United States to settle with 
their property in a Territory, which rights should not be im- 
paired by legislation, either of the Territory or of Congress. 
It affirmed the duty of Congress to protect, when necessary, 
the rights of persons and property in the Territories, and 
wherever its constitutional authority extended. It also af- 
firmed that sovereignty in a Territory commenced when set- 
tlers in adequate numbers formed a Constitution for admission 
into the Union which was consummated by admission; and 
that a State so organized should be admitted, whether its Con- 
stitution recognized or prohibited slavery. 

The Union platform, after averring that experience had 
demonstrated that political platforms adopted by partisan 
conventions had had the effect to mislead and deceive the 
people and to widen the political divisions of the country by 
the creation and encouragement of geographical and sectional 
parties, resolved that it was the part of duty and patriotism to 
recognize no political principles other than the Constitution 
of the country, the union of the States, the enforcement of 
the laws, and so on. 

The vote was as follows : For Mr. Lincoln, one hundred 
and eighty votes; Breckinridge, seventy two votes; Bell, 
thirty-nine votes; Douglas, twelve votes. 

Bell carried Virginia, Tennessee, and Kentucky; Breck- 
inridge, all the other Southern State?, except Missouri, which 
was carried by Douglas. 

The canvass was exciting and sectional. In the North 
slavery and slaveholders were denounced. The fugitive slave 
law was condemned. Though no purpose was avowed to 
interfere by direct action to abolish slavery in the States, yet 
slavery was held to be inconsistent with the principles of the 
Declaration of Independence and condemnation of it was 
embodied in the Constitution, as stated in the Republican 



86 The Political History of Slavery in the United States 

platform; and a determination was avowed to destroy it by 
surrounding it with a cordon of free States. The higher-law 
doctrine was embraced. The irrepressible conflict, that the 
Union could not endure half slave and half free, was pro- 
claimed as a self-evident truth. That the Constitution was a 
covenant with death and an agreement with hell was taught. 
It was also announced that the Supreme Court was to be re- 
organized so as to make the judges political representatives 
of sections and States instead of the lawful and impartial 
expositors of the Constitution, — it was henceforth to speak 
the voice of the dominant party and section, not to enforce 
the guarantees of the Constitution. 

The South could but observe the growing disposition of 
the North against slavery and the determination to take such 
measures as would ultimately destroy it. It was evident that 
the North, as affirmed by Mr. Channing, was coming to the 
conclusion that our fathers had swerved from the right in 
framing the Constitution, and that the present generation, 
seeing the path of duty plainer than our fathers, were de- 
termined to walk in it for the destruction of slavery. The 
existence of the irrepressible conflict had, in fact, been dem- 
onstrated. 

The Southern people had no wish to extend slavery to 
the Northern States. In fact, they had ever insisted that this 
was a matter for each State to decide for itself. They knew, 
as all men know, the utter impossibility of so extending it. 
They knew that neither Mr. Lincoln nor Mr. Seward enter- 
tained the least fear of such extension. They knew, there- 
fore, that the declaration that all the States must be either 
slaveholding or the contrary meant that in them all slavery 
must be abolished. They felt, as Mr. Jefferson had said, that 
they had the wolf by the ears, and they could not let go with 
safety. They saw that the African race was rapidly increas- 
ing in their midst, and they shrank back at the contemplation 
of the fact that when emancipation should come the Negroes 
would probably outnumber them. They remembered that 
they were not responsible for the introduction of the African 
race into this country, and that this was acknowledged even 
by the North. They knew that the Abolitionists, whose views 
seemed now to shape largely the policy of the North, were 
opposed to colonization and in favor of amalgamation, as 



John Brown's Invasion of Virginia 87 

Mr. Clay had declared they were ; * yet they knew, too, that 
the Northern States had taken steps to save themselves from 
the evils and dangers of a numerous free Negro population 
by enacting laws that, — in the remonstrating language of Mr. 
Dawes, with reference to the newly formed States of the 
West, in his letter of September 26, 1859, to W. C. Neill, — 
would "disfranchise, disable, and drive out the free Negroes 
from their borders." 2 Compromises had been resorted to in 
vain. They had proven to be, as Mr. Jefferson said, "a re- 
prieve only, not a final sentence." The repudiation of the 
Constitution with respect to the surrender of fugitive slaves 
and the denunciation of that other compromise that allowed 
three-fifths representation for the slaves had in fact become 
the watchword and battle-cry of the assailants of the South. 
The Southern people remembered that the Missouri compro- 
mise had been repudiated by the North in less than a year 
after it was made, and also in 1848, when it was proposed 
with reference to Oregon, and again when it was proposed 
in 1850 to be applied to the territory acquired from Mexico; 
and when, in 1854, in accordance with the great compromise 
of 1850, it had been superseded, it then for the first time 
became, or was claimed to be, a sacred compact between the 
sections, its repeal having been made the occasion of fresh 
assaults on the South that were more determined and bitter 
than ever before. 

They thus saw, or thought they saw, that in the future 
they were, for no fault of theirs, to be proscribed in the com- 
mon government, and held not only unworthy of any leader- 
ship or influence in the common councils of the Union, but as 
objects of suspicion and distrust. They felt that their dear- 
est interests were to be subjected to the officious and un- 
friendly intermeddling of a power that was both able and 
willing so to unsettle society and even their local governments 
as, in their judgment, to destroy them. 

It was foreseen that these policies and measures would 
result in emancipation of the African race, which, remaining 
in the South as a part of the permanent population, and be- 
ing clothed with the rights of citizenship, would, by the in- 
evitable antagonism of the diverse races, prevent all progress 

1 Congressional Globe, 1st Session, 36th Congress, p. 254. 
8 Ibid., 266. 



88 The Political History of Slavery in the United States 

and growth, and finally result in bloodshed because of the 
rivalry for race domination. Nor was it regarded as of 
small moment that emancipation would not come, as it had 
in the Northern States, at a time and under circumstances 
and conditions that the white people of the South, judging 
what is best for their own safety, should themselves ordain; 
but would be forced by a power outside, directed by fanati- 
cism and an enmity to the whites that had been engendered 
and intensified by long years of bitter contests over this very 
matter. 

That the South was sincere in these apprehensions there 
is no doubt. This was confessed by distinguished Northern 
men of both parties. 

Mr. Wade, of Ohio, on December 17, i860, said: "But 
what has caused this great excitement? Sir, I will tell you 
what I suppose it is. I do not (and I say it frankly) so 
much blame the people of the South; because they believe, 
and they are led to believe by all the information that ever 
comes before them, that we, the dominant party to-day, who 
have just seized upon the reins of this government, are their 
mortal enemies, and stand ready to trample their institutions 
under foot. They have been told so by our enemies at the 
North." 1 

Mr. Douglas acknowledged that the Southern people had 
just apprehensions that their domestic institutions were to 
be assailed and that their constitutional rights were to be in- 
vaded and destroyed ; and he referred to the above quotation 
from Mr. Wade to show that he also acknowledged that such 
was their belief. 

So, upon the election of Mr. Lincoln, seven of the South- 
ern States promptly passed ordinances of secession, and these 
were soon followed by four others. 

It has been urged against the South that these ordinances 
were a traitorous attempt on the part of the people of these 
States to destroy the Government. 

1 Congressional Globe, 2d Session, 36th Congress, p. 100. 



CHAPTER X 

SECESSION 

Without essaying at this day to defend the legality and 
validity of secession, it may well be pardoned even by the 
most inveterate enemy of the Southern people if a statement 
be made that may at least tend to modify opinions and im- 
pressions entertained by the Northern people that were in- 
jurious to the people of the South. 

Since the Union has been restored and the doctrine of 
secession condemned by arms and by constitutional amend- 
ment, and since by the consent of the great body of the 
Northern people the disfranchisement that they themselves in 
heat and passion imposed has been removed from the South- 
ern people, who by such removal have been thereby declared 
worthy of political trust and power, it cannot but be good 
that the people of the stronger section shall believe, if the 
belief be well founded, that their fellow-citizens of the South, 
— their brethren, co-heirs with them of the great principles 
of constitutional liberty that descended to them both from 
a common ancestry, — are pure, just, conservative, and hon- 
orable men. Certainly every one but a political Pharisee (of 
whom it is hoped there are but few in the country) who 
cherishes as his dearest earthly treasure the conviction of a 
personal holiness that the favor and partiality of a beneficent 
God has not permitted to others will rejoice in any evidence 
that may convince the world, — as well as himself, — that 
American institutions have never produced eleven millions 
of traitors, — men lost to all sense of obligation to the Con- 
stitution of their country and false in the discharge of their 
political duties under it. 

If this can be done, as it is hoped it can be, without re- 
newing the argument in favor of the right of secession and 
reopening sectional and irritating questions settled as to the 

89 



90 The Political History of Slavery in the United States 

future by the force of arms and the general acquiescence of 
all, it will be a task well performed in the interests of our 
common country. Then let it be noted that no attempt will 
be made in this paper to present the legal argument in favor 
of the right of secession. That duty may be assumed at some 
future time, if it shall be deemed to be in the interest of a 
common brotherhood. x So far as the present paper is con- 
cerned, the reader, if that be a comfort or a joy to him, may 
indulge to the top of his bent the conviction that secession is 
a heresy in law and a crime under the Constitution. We are 
not now appealing to that great tribunal that at last must set- 
tle all questions of this kind, a fair and impartial posterity, 
to render their judgment on the legal questions involved. On 
the contrary, we are appealing to the present generation, 2 
a majority of whom acted on the one side or on the other, 
for that impartial examination of the conduct of the people 
of the South, that will render judgment only after a fair con- 
sideration of all the surroundings that caused and gave char- 
acter to their action. 

And, first of all, it must be remembered that the people 
of the United States belonged to a race that in all its history 
never sanctioned the doctrine of passive obedience. Their 
history from its earliest dawn is full of instances in which 
the Anglo-Saxon people righted what they deemed their 
wrongs, or attempted to do so, by force or revolution. Nor 
must it be forgotten that as our American institutions grew 
up the people were tutored in the principles of freedom by 
the continued and repeated resistance of the colonies to the 
acts of the mother country. And finally when in 1776 the 
pretensions of the British Crown and Parliament drove the 
colonies to forcible resistance, in the immortal Declaration that 
justified that act it was announced as the foundation of their 
right that governments derive "their just powers from the 
consent of the governed," and that this consent may rightly 
be withdrawn when, in the opinion of the governed (not in 
the judgment of the rulers), the Government may become 
destructive of the end for which it was established. This 
doctrine was fundamental in the American idea of free gov- 

1 Appendix A. Minority Report on National Inquest Bill U. S. 
Senate. 

2 Written about 1891 or 1892. 



Secession 9 1 

ernment. It was so announced in all of the State Constitu- 
tions that were formed at the era of the Declaration. 

In the first Constitution of Massachusetts, framed in 
1790, it was declared "that whenever the just objects of 
government are not obtained, the people have a right to 
alter the government and take measures necessary for their 
safety, prosperity, and happiness," and "the people alone have 
an incontestable, inalienable, and indefeasible right to insti- 
tute government and to reform, alter, or totally change the 
same when their protection, safety, prosperity, and happiness 
require it." 

And, as if to show they meant by "the people" only the 
people of Massachusetts, it was thus declared in Article Four: 

"The people of this commonwealth have the sole and ex- 
clusive right of governing themselves as a free, sovereign and 
independent State, and do, and forever hereafter shall, exer- 
cise and enjoy every power and jurisdiction and right which 
is not, or may not hereafter be, by them," — not by the people 
of the United States, but by them, — "expressly delegated to 
the United States of America in Congress assembled." 

Connecticut, in the preamble of the Constitution of 1776, 
declared that "the people of this State, being by the provi- 
dence of God free and independent, have the sole and ex- 
clusive right of governing themselves as a free, sovereign, 
and independent State." In the first paragraph of the Con- 
stitution they declare that "this Republic is and shall forever 
be and remain a free, sovereign, and independent State by 
the name of the State of Connecticut." 

Vermont was neither known nor recognized as an inde- 
pendent State at that date, but was claimed by New York, 
New Hampshire, and Massachusetts. Her existence as a 
State, independent of these three, was so utterly ignored that 
she was not represented in the Continental Congress ; and 
when the treaty with Great Britain was made recognizing 
the Independence of the United States the name of Vermont 
was not mentioned with the names of the other thirteen, so 
that her legal separation from the British Empire depended 
upon the fact that she was a part of one or more of the above- 
named States. Vermont recognized fully the situation. In 
1776 the people of that State made a Declaration of Inde- 
pendence, separating themselves from the State of New York, 



92 The Political History of Slavery in the United States 

reciting their grievances against that State, and also declar- 
ing that "the local situation of Vermont at its extreme part 
is upwards of four hundred and fifty miles from the seat of 
government of New York, which renders it extremely diffi- 
cult to continue under the jurisdiction of said State." 
"Therefore," they declared, "it is absolutely necessary for the 
welfare and safety of the inhabitants of this State that it 
should be henceforth a free and independent State," declar- 
ing that a "just, permanent, and proper form of government 
should exist in it, derived from and founded on the authority 
of the people only, agreeable to the directions of the Honor- 
able American Congress." They affirmed also "that all gov- 
ernment ought to be instituted for the security and protec- 
tion of the community. . . . and whenever these great ends 
of government are not obtained, the people have a right by 
common consent to change it and take such measures as to 
them may appear necessary to promote their safety and hap- 
piness." And then in framing the Bill of Rights to the Con- 
stitution they affirm in section six that "government is, or 
ought to be, instituted for the common benefit, protection, and 
security of the people, nation, or community . . . and the 
community hath an indubitable, inalienable, and indefeasible 
right to reform, alter, or abolish government in such manner 
as shall be by that community judged most conducive to the 
public weal." 

Pennsylvania in her Constitution of 1776 made similar 
declarations. 

Virginia, the great leader, not only of the South, but at 
that time of the whole country, in the second section of the 
Bill of Rights to her Constitution, adopted June 12, 1776, 
nearly a month prior to the Declaration of Independence, de- 
clared : 

"That government is, or ought to be, instituted for the 
common benefit, protection, and security of the people, na- 
tion, or community; and of all the various modes and forms 
of government that is best which is capable of producing the 
greatest degree of safety and happiness, and is most effectu- 
ally secured against the danger of maladministration; and 
that when any government shall be found inadequate, or con- 
trary to these purposes, a majority of the community hath an 
indubitable, inalienable, and indefeasible right to reform, 



Secession 93 

alter, or abolish it in such manner as shall be deemed most 
conducive to the public weal." 

And that great State, affirming its sovereignty and inde- 
pendence, as Massachusetts did four years afterward, in 
section fourteen of the Bill of Rights, declared that "the 
people have a right to a uniform government; and, therefore, 
no government separate from or independent of the govern- 
ment of Virginia ought to be erected or established within the 
limits thereof." 

Maryland, by her Constitution of 1776, declared that 
"whenever the ends of government are perverted and the 
public liberty manifestly endangered, and all other means of 
redress are insufficient, the people may, and of right ought 
to, reform the old and establish a new government. That 
the doctrine of non-resistance against arbitrary power and 
oppression is absurd, slavish, and destructive of the good and 
happiness of mankind." 

It will be noticed that these declarations were made at the 
most important era in our history. They enunciated the po- 
litical truths that were the foundations of American politics. 
They were the institutions by which our people were taught, 
and from which they learned, the fundamental principles of 
free government. These principles were the foundation 
stones of our political edifice. 

And all the States, when they came to form the Articles 
of Confederation, which received their final shape on June 
26, 1778, declared in Article Two, "that each State retains its 
sovereignty, freedom, and independence." And, after also 
declaring that the agreement was to Articles of Confedera- 
tion and perpetual union, eleven of these States seceded 
from this perpetual union, each State acting separately for it- 
self, and formed a new government, leaving two as inde- 
pendent foreign nations. And this was done without any 
suggestion that it was a violation of the agreement for a per- 
petual union or of the duties that the seceding States owed to 
the others. 

These were the teachings of the era of the Revolution, 
before the adoption of the Constitution. The practice of 
the colonies had been in accordance therewith. Such also was 
the view of the States after the Declaration of Independence. 
The New England Confederacy, in 1641, had been formed 



94 The Political History of Slavery in the United States 

and afterward dissolved. The union, under the Articles of 
Confederation, therein declared to be perpetual, had been 
dissolved against the consent of two members at least. And 
the new union was the result of an accession of the several 
States thereto, each acting for itself and by itself. 

The convention of the great State of New York, which 
ratified the Constitution of the United States, having among 
its members the most distinguished men of the union, in- 
cluding Alexander Hamilton, in the very act of ratification 
thought it proper to declare with reference to the Federal 
Government then about to be established : 

"That all power is originally vested in and consequently 
derived from the people, and that government is instituted 
by them for their common interests, protection, and security. 
That the powers of government may be reassumed by the 
people whenever it shall become necessary to their happiness ; 
that every power, jurisdiction, and right, which is not by said 
Constitution clearly delegated to the Congress of the United 
States or the Departments of the Government thereof, re- 
mains to the people of the several States, or to their respec- 
tive State Governments, to whom they may have granted the 
same." 

The convention of Rhode Island declared : 

"That all power is naturally vested in and consequently 
derived from the people; that magistrates therefore are their 
trustees and agents, and at all times amenable to them. That 
the powers of government may be reassumed by the people 
whensoever it shall be necessary to their happiness." 

Oliver Ellsworth, speaking in the Connecticut Conven- 
tion, in favor of ratifying the Constitution, said : "This 
Constitution does not attempt to coerce sovereign bodies, 
States, in their political capacity. No coercion is applicable 
to such bodies but that of an armed force. If we should 
attempt to execute the laws of the Union by sending an armed 
force against a delinquent State, it would involve the good 
and bad, the innocent and guilty, in the same calamity." x 

(See Mr. Madison's speeches in convention on coercion.) 

Mr. Wilson, in the convention of Pennsylvania, said : 
"But, in this Constitution, the citizens of the United States 
appear dispensing a part of their original power in what 

1 Elliot's Debates, Vol. II, p. 197. 



Secession 95 

manner and in what proportion they think fit. They never 
part with the whole; and they retain the right of recalling 
what they part with." x 

After the adoption of the Constitution and the formation 
of the new Government under it the right of a State to act 
for itself alone was advocated in the highest quarters and on 
the most solemn occasions. The alien and sedition laws were 
regarded as a great step toward consolidation, and they gave 
rise to the celebrated resolutions of Virginia in 1798 and of 
Kentucky in 1799. Of the former Mr. Madison was the 
author, and the latter were drawn by Mr. Jefferson. 

The Virginia resolutions declared that the Constitution 
of the United States was a compact to which the States were 
parties ; and that in case of the deliberate, palpable, and dan- 
gerous exercise of other powers not granted by the compact 
the States who are parties thereto have the right, and are in 
duty bound, to interpose for arresting the progress of the 
evil and for maintaining within their respective limits the 
authorities, rights, and liberties appertaining to them. 

The Kentucky resolutions declared : 

"That the several States comprising the United States of 
America are not united on the principle of unlimited submis- 
sion to the general government; but that by compact under 
the style and title of the Constitution for the United States 
of America and of amendments thereto they constituted a 
general government for special purposes, delegated to that 
government certain definite powers, reserving, each State to 
itself, the residuary mass of right to their own self govern- 
ment, and that whensoever the general government assumes 
undelegated power, its acts are unauthoritative, void, and of 
no force; that this government created by this compact was 
not made the exclusive or final judge of the extent of the 
powers delegated to itself ; since that would have made its 
discretion and not the Constitution the measure of its powers ; 
but that, as in all other cases of compact among parties hav- 
ing no common judge, each party has an equal right to judge 
for itself as well of infractions of the Constitution as of the 
mode and measure of redress." 

The Republican platform of 1800, on which Mr. Jeffer- 
son was elected to the Presidency, breathed the same spirit, 

1 Elliot's Debates, Vol. II, p. 437. 



96 The Political History of Slavery in the United States 

declaring that the Constitution was adopted by the States, af- 
firming it to be a duty to preserve to the States powers not 
yielded by them to the Union, and pointing out the duty of 
resistance to existing movements for transferring all the pow- 
ers of the States to the general government. 

It is well also to note that in the responses of the other 
States to the resolutions of Virginia, they all, — Rhode Island, 
Connecticut, Massachusetts, New Hampshire, and Vermont, 
— affirmed that the Supreme Court is the final judge of the 
powers granted ; yet none of them denied the power or the 
duty of the States to preserve their reserved rights, but they 
denied only that the Legislatures of the States were compe- 
tent to decide upon the constitutionality of the laws of Con- 
gress. 

The Constitution had been adopted by the people of each 
State for itself in a convention of the people of that State 
that had been called for the express purpose of deciding upon 
ratification or rejection, — a convention that was a power well 
settled in American law to be higher than any State Legis- 
lature. The Legislature of Massachusetts in their answer to 
Virginia and Kentucky called attention in the plainest man- 
ner to the distinction between the powers of the Legislature 
and of the people assembled in convention, — affirming it to 
be a duty solemnly to declare that, while they held sacred the 
principle that the consent of the people is the only pure source 
of just and legitimate power, they cannot admit the right of 
the State Legislatures to denounce the administration of the 
Government to which the people themselves, by solemn com- 
pact, have exclusively committed their national concerns. 

It will be further noticed that none of these States denied 
the fundamental proposition of the Virginia resolutions, that 
the Constitution was formed by the States; and that Massa- 
chusetts, on the contrary, declared explicitly that she "will 
always cooperate with her Confederate States in rendering 
the union productive of national security, freedom, and hap- 
piness." 

It is to be remembered that in the great debate between 
Mr. Webster and Mr. Calhoun in 1833 the main issue was 
as to whether the Constitution was a compact between the 
States, the latter affirming and the former denying this propo- 
sition. It was conceded that if the Constitution were a com- 



Secession 97 

pact or confederacy between sovereign States, then the right 
of judging of infractions of the compact and the mode of 
redress belonged to each of the confederates, or, in other 
words, secession was a lawful remedy. 

This language of "a compact between the States," — "con- 
federacy," — was habitually applied to the Constitution and 
the Union under it in the earlier days of the Government. 
One of the first acts of the American Senate in 1789 was 
their answer to the inaugural address of General Washing- 
ton. In this they answered the President that they would 
"at all times cheerfully co-operate in every measure which 
may strengthen the Union, conduce to the happiness, or se- 
cure and perpetuate the liberties of this great Confederate 
Republic." 1 

Mr. Madison in the same year, in a speech advocating the 
submission to the States of amendments to the Constitution, 
spoke of North Carolina and Rhode Island as two States 
"that had not thought fit to throw themselves into the bosom 
of the Confederacy" and of the other States as having "em- 
braced the Constitution." 2 

He spoke of his sorrow for the men in Rhode Island, 
who, being favorable to the Union, were yet "kept without 
the embrace of the Confederacy." 3 

Mr. Madison, in proposing the first article of amendment 
to the Constitution, proposed to insert the word "national" 
before "religion." Mr. Gerry, of Massachusetts, objected, 
because it would favor the idea of those who considered that 
the form of government consolidated the union. 

Mr. Madison withdrew the proposition, observing that 
"the words 'no national religion shall be established by law' 
did not imply that the Government was a national one." 4 

And in reference to the tenth amendment, which declared 
that the powers not granted by the Constitution are reserved 
to the States, Mr. Madison said : "I find, from looking into 
the amendments proposed by the State conventions, that sev- 
eral are particularly anxious that it should be declared in the 
Constitution that the powers not therein delegated should 

"Annals, 1st Congress, p. 32. 

2 Ibid., p. 432. 

3 Ibid., p. 443. 

4 Ibid., p. 731. 



98 The Political History of Slavery in the United States 

be reserved to the several States. Perhaps other words may 
define this more precisely than the whole of the instrument 
now does. I admit they may be deemed unnecessary; but 
there can be no harm in making such a declaration." x And 
in his draft of that amendment the undelegated and unpro- 
hibited powers were reserved to the "States respectively," 2 
and, on motion of Mr. Carroll, the words "or to the people" 
were inserted without debate. 

In 1803 Mr. Thatcher, of Massachusetts, in a speech op- 
posing the admission of Louisiana, said that "the Confedera- 
tion under which we now live is a partnership of States, and 
it is not competent to it to admit a new partner but with the 
consent of all the parties." 3 In the same debate Mr. Gris- 
wold, of Connecticut, spoke of the admission of Louisiana 
as "repugnant to the original compact between the States, and 
a violation of the principles on which that compact was 
formed"; of the Union as "a partnership between the 
States" ; of the Federal Government as the agent of the 
States "appointed to execute the business of the compact in 
behalf of the principals." 4 

In 181 1 Mr. Quincy, of Massachusetts, used the same 
language in opposing the admission of Louisiana, calling the 
Constitution a political compact and the States "sovereign." 
Speaking of the proposed admission as inconsistent with the 
intent of the contract and the safety of the States which es- 
tablished the association, he announced it as "a plain moral 
principle of public law and conformable to the plainest dic- 
tates of reason that the violation of a contract," such as he had 
described the Constitution to be, "may be considered as ex- 
empting the other from its obligations." And finally he 
asserted deliberately and with emphasis that if Louisiana 
were admitted, "it would be the right of all the States and the 
duty of some of them to prepare definitely for a separation, 
amicably if they can, forcibly if they must." 

The answer of the State of Connecticut to the invitation 
of Massachusetts to meet the New England States in con- 
vention at Hartford speaks of the Union as a "Federal com- 

1 Annals, 1st Congress, p. 441. 

2 Ibid., p. 761. 
8 Ibid., p. 454. 
4 Ibid., p. 462. 



Secession 99 

pact," complains of infractions of it, and speaks of the rights 
of the States and the determination to defend them. 

The proceedings of the Hartford Convention, which have 
hereinbefore been set out, speak of a State in the Union as a 
"Confederate State," of the "sovereignty of a State," and 
aver that the States, "having no common umpire, must be 
their own judge and execute their own decisions." 

In the great controversy about the admission of the State 
of Missouri before noted the Union was habitually called a 
"Confederacy" and the States parties to it. Thus, Mr. Clay, 
in the 16th Congress, 1 Mr. Edwards, of Illinois, 2 and Mr. Mel- 
len, of Massachusetts, said : "Independent State in the Con- 
federacy." 3 

Mr. Ruggles, of Ohio, said, "A new member of this 
great Confederacy," 4 and spoke of the States as "parties to 
the Federal Compact." ° 

Mr. Trimble, of Ohio, said, "A general Compact or Fed- 
eral Constitution, to which the States, in their corporate ca- 
pacities, were also parties." 6 

Harrison Gray Otis, of Massachusetts, said, "The Federal 
Union consisted of States which had joined the Confederacy 
under various circumstances" ; 7 and speaking in reference to 
the old States, he said, "The States are the sources of power, 
and the Constitution is the reservoir" ; the old "States were 
the grantors" of powers; the Constitution is a "Federal Com- 
pact.:' 8 

Mr. Holmes, of Massachusetts, spoke of the Constitution 
as "a compact formed by the thirteen States." 

Pennsylvania, in resolutions of her legislature against the 
admission of Missouri, insisted "upon a sacred observance 
of the constitutional compact." 

Mr. Pinckney, in the debate on the Missouri question in 
1820, said: "What is that union? A confederation of States 
equal in sovereignty, capable of everything which the Consti- 

1 Annals, 1st Session, 16th Congress, pp. 831 and 841. 

"Ibid., p. 190. 

' Ibid., p. 183. 

* Ibid., p. 279. * 

' Ibid., p. 280. 

'Ibid., p. 288. 

T Ibid., p. 242. 

'Ibid., p. 245. 



100 The Political History of Slavery in the United States 

tution does not forbid, or authorize Congress to forbid. It 
is an equal Union between parties equally sovereign. They 
were sovereign independently of the Union." "By acceding 
to it the new State is placed on the same footing with the 
original States." * 

All through the speech he spoke of the Constitution as a 
compact. 1 

In fact this language was habitual during the earlier days 
of the country. 

In a later day, as we have seen, in the manifesto issued 
in 1850 by twenty members of Congress, signed among others 
by J. Q. Adams and Mr. Giddings, the admission of Texas 
was denounced as a violation of the "national compact" and 
"identical with the dissolution of the Union." 

The Democratic platform of 1852, on which Mr. Pierce 
was elected, carrying every State but four, — Vermont, Mas- 
sachusetts, Kentucky, and Tennessee, — declared that the Dem- 
ocratic party would "faithfully abide by and support the 
principles laid down in the Virginia and Kentucky resolu- 
tions of 1798 and 1799"; and, in the report of Mr. Madison 
to the Virginia Legislature in 1799, that "it adopts these 
principles as constituting one of the main foundations of its 
political creed, and is resolved to carry them out in their 
obvious meaning and import." This declaration was reaf- 
firmed in 1856, when the party elected Mr. Buchanan, and 
again in i860 by both the Douglas and the Breckinridge 
wings of the party; and though it was then defeated, a major- 
ity of the popular vote was cast in the aggregate for these 
two nominees. It has been made clear, it is believed, from the 
imperfect reference to the public history of the country that 
the Southern people are entitled to the defense that there was 
reasonable ground to believe, and they did believe, that seces- 
sion was a lawful right under the Constitution. Nothing 
further is affirmed now. So when Mr. Lincoln was elected, 
they, believing their rights and safety were endangered in the 
Union, sought them outside the Union by secession. 

It may as well be stated here in answer to the charge that 

secession was an attempt to destroy the life of the nation and 

to overturn the Government of the United States that it was 

not contemplated by the Southern people to interfere in the 

Annals, 16th Congress, 1st Session, p. 397. 



secession ioi 

least with those States that adhered to the Union, or with 
their government. In fact, they appointed commissioners to 
treat with the United States Government as an independent 
power. They sought merely to withdraw themselves from 
subjection to a government, which, they were convinced, in- 
tended to wield its power to overthrow their domestic insti- 
tutions, to disturb their domestic tranquillity, and to subju- 
gate them to a position of inferiority in a Union that had 
been formed of equal States. If the eleven seceding States 
had been permitted peaceably to depart, or had succeeded in 
the contest of arms in establishing their independence, there 
would have been no destruction of the Government of the 
United States any more than there was a destruction of the 
Government of the British Empire by the secession of the 
American Colonies, or of the Government of New York by 
the secession of Vermont. 1 It would have remained the same 
government that it was before, with all its powers and faculties 
unimpaired. It would only have embraced less territory. 
But even as to that, it would, after the secession of the States, 
have embraced largely more territory than it did at the for- 
mation of the Constitution. That original territory, as we 
have seen, was claimed by the North, especially by New Eng- 
land, at every step from the acquisition of Louisiana in 1803 
to the annexation of Texas in 1845, to De large enough for 
the Government of the United States, and that subsequent 
admissions of States were not allowable by the Constitution. 
All these acquisitions had come from the action of the South 
against the protest of the North and exceeded by many thou- 
sand square miles the territory of the seceding States. And 
as to Florida, Louisiana, Texas, Arkansas, and Missouri, 
their secession would have but redressed the wrong- that the 
North complained was committed when they were admitted 
into the Union. The territory remaining to the United States 
after the secession of the Southern States is now occupied by 
a people numbering forty million, 2 — a population larger 
than that of any European country except Germany, and it 
will soon exceed Germany's by many fold. But they were 
not permitted to depart. 

1 Or the Government of Columbia by the secession of Panama. — 
Editor's note. 

2 About 1891-2. 



CHAPTER XI 

THE WAR AND ITS PURPOSES 

The war commenced, notwithstanding the Convention 
that formed the Constitution had expressly negatived a prop- 
osition to confer on the Federal Government the authority to 
exert the force of the Union against a delinquent State. Mr. 
Madison had said in the Convention that a "Union of States 
containing such an ingredient seemed to provide for its own 
destruction. The use of force would look more like a dec- 
laration of war than an infliction of punishment, and would 
probably be considered by the party attacked as a dissolution 
of all previous contracts by which it was bound." 

At first the position as thus assumed by Mr. Madison 
seemed to have weight with the National Executive. In his 
proclamation of the fifteenth of April, 1861, after the seces- 
sion of the Southern States, the President in calling out the 
militia designated the force to be overcome as "combinations 
too powerful to be suppressed by the ordinary course of Gov- 
ernment proceedings," and the purpose of the call was stated 
to be "to suppress said combinations and to cause the laws 
to be duly executed." 

The purpose and object of the war was distinctly avowed 
both by the President and by Congress. 

Soon after the battle of Bull Run, in July, 1861, the Sen- 
ate of the United States passed a resolution declaring "that 
this war is not prosecuted upon our part in any spirit of op- 
pression, nor for any purpose of conquest or subjugation, 
nor purpose of overthrowing or interfering with the rights or 
established institutions of those [seceding] States, but to de- 
fend and maintain the supremacy of the Constitution [of the 
United States] .... and to preserve the Union, with all the 
dignity, equality, and rights of the several States unimpaired; 
that as soon as these objects are accomplished the war ought 
to cease." l 

1 Congressional Globe, 1st Session, 37th Congress, p. 257. 

102 



The War and Its Purposes 103 

The House of Representatives passed a resolution in al- 
most identical language, — identical in substance in every par- 
ticular. 

That this resolution did not represent the true opinions 
and purpose of the war party was suspected, if not implicitly 
believed, by the South. In this belief they are now justified 
by the course of events before, during, and subsequent to the 
war, and by the declaration of one of the ablest and most 
distinguished generals and statesmen of the North, — a dec- 
laration that was made long afterward, when full oppor- 
tunity had been given for a correct interpretation of the true 
meaning of events, free from all hindering embarrassment 
coming from the passions excited by the conflict of arms. 

This interpretation was given of the purposes of the war 
on the 8th day of April, 1886, by Mr. Hawley, a Senator 
from the State of Connecticut. He said in a speech in the 
Senate on that day : "Against a race prejudice, against the 
prejudices, the deep, encrusted prejudices of centuries, men 
who hated the face of a Negro and would not have him near 
them, were led into and plunged into a great war and carried 
it on for four years, disguise it as you please, the substantial 
purpose of it all being to make it true that there should not 
be a slave upon the soil of this continent." x 

The war proceeded with varying fortunes to either side. 
In March, 1862, very soon after the first great disasters to 
the Southern arms at Fishing Creek, Fort Henry, and Fort 
Donelson, and the evacuation of Bowling Green and a large 
part of Tennessee, Mr. Lincoln sent in a message to Congress 
recommending the passage of this resolution: "Resolved, 
That the United States ought to co-operate with any State 
which may adopt gradual abolishment of slavery, giving to 
such State pecuniary aid, to be used by such State in its dis- 
cretion, to compensate for the inconveniences, public and 
private, produced by such change of system." 

He urged this as a proper measure to detach the border 
States from the seceding States, thus rendering the suppres- 
sion of the Rebellion more easy. 

He declared that gradual and not sudden emancipation 
was better for all. 2 

1 Congressional Record, 1st Session, 49th Congress, p. 3273. 

2 Congressional Globe, 37th Congress, 2d Session, p. 1102. 



104 The Political History of Slavery in the United States 

The resolution passed the House March 10, — ayes ninety- 
nine, nays thirty-six, — and received the sanction of the Sen- 
ate April 2, — ayes thirty-two, nays ten. The Republicans as 
a rule voted for it and the Democrats against it. 1 

The majority of, if not quite all, the Senators and Repre- 
sentatives from the border slave States voted against it. 

CONFERENCE BETWEEN THE PRESIDENT AND THE MEMBERS 
OF CONGRESS FROM THE BORDER STATES 

On July 12, 1862, a conference took place between the 
President and the Senators and Representatives of the border 
States. In this Mr. Lincoln strongly urged action by the 
border States under the resolution above quoted. He ex- 
pressed his regret that the Senators and Representatives from 
those States had not voted for it, and stated that "in my [his] 
opinion, if you had all voted for the resolution in the gradual 
emancipation message of last March, the war would now be 
substantially ended," alleging as the ground therefor that 
the seceding States, seeing that the border States would 
never join them, could not much longer maintain the contest. 
He urged immediate action by the border States, saying : "I 
do not speak of emancipation at once, but of a decision at 
once to emancipate gradually. Room in South America for 
colonization can be obtained cheaply and in abundance, and 
when numbers shall be large enough to be company and en- 
couragement for one another, the freed people will not be so 
reluctant to go." 2 

The answers of twenty Senators and Representatives 
from the border States, among them John J. Crittenden, ob- 
jected to the scheme, but avowed a determination to stand 
by the Union. It concluded thus : "If Congress, by proper 
and necessary legislation, shall provide sufficient funds and 
place them at your disposal, to be applied by you to the pay- 
ment of any of our States, or the citizens thereof who shall 
adopt the abolishment of slavery, either gradual or immedi- 
ate, as they may determine, and the expense of deportation or 
colonization of the liberated slaves, then will our States and 
people take the proposition into careful consideration for 

1 Cooper's "American Politics," Book I, p. 137. 

2 Ibid. 



The War and Its Purposes 105 

such decision as, in their judgment, is demanded by their in- 
terest, their honor, and their duty to the whole country." 1 
The minority of the border State members made separate re- 
plies, but all objected to the scheme. 

In this first executive suggestion for the abolishment of 
slavery in any of the States it will be noticed that emancipa- 
tion by State action alone was contemplated. The portion of 
the United States was to be only a"s bearer of a part, if not 
all, of the burden of the measure; and emancipation was to 
be gradual and accompanied by the deportation and coloniza- 
tion of the freedmen. The judgment of the country, and of 
Mr. Lincoln himself, founded on long experience and observa- 
tion, was that the freedmen should be removed from contact 
with the white race. There was not the slightest hint of 
emancipation by the act of the Federal Government, or of the 
citizenship of the emancipated slaves. 

The next step taken was on September 22, of the same 
year, when Mr. Lincoln issued a proclamation that he would 
on January 1, 1863, declare all slaves free in States and des- 
ignated parts of States, if such States and parts of States 
were not then "in good faith represented in the Congress of 
the United States." If this proclamation was intended, as it 
manifestly was, to induce the Southern people to lay down 
their arms and send Representatives to Congress, how vain 
and futile was this condition if, at that date, nearly two years 
after secession and consequent war, the dogma afterward set 
up by Congress was true, that the States by secession had 
forfeited their right to representation in Congress, — a right 
that could only be restored by legislation. 

Mr. Lincoln also declared in the proclamation of Septem- 
ber 22, 1862, that it was his purpose to recommend to Con- 
gress at its next meeting a practical measure tendering pe- 
cuniary aid to all the slave States that were not then in rebel- 
lion, and that may voluntarily adopt immediate or gradual 
emancipation; and "that the effort to colonize persons of 
African descent with their own consent, on this continent or 
elsewhere .... would be continued." 

The promised proclamation was accordingly issued on the 
date named. 

In his annual message of December, 1862, in redemption 

1 Cooper's "American Politics," Book I, p. 140. 



106 The Political History of Slavery in the United States 

of his promise just noticed, to present and recommend a 
scheme to aid in emancipation, Mr. Lincoln recommended 
amendments to the Constitution of the United States as fol- 
lows: 

i. Offering pecuniary compensation to every State that 
would abolish slavery by the year 1900; 

2. Declaring free all slaves who shall have enjoyed ac- 
tual freedom by the chance of war before the end of the 
rebellion, but loyal owners to be compensated ; 

3. Granting power to Congress to appropriate money 
and otherwise provide for colonizing free colored persons 
with their own consent at any place or places outside the lim- 
its of the United States. 

In recommending these amendments to the favor and 
support of Congress and of the country, he said, "I cannot 
make it better known than it already is that I strongly favor 
colonization." And in combating the fears of the Northern 
people that the liberated Negroes would settle among them, 
he said : "Heretofore colored people have fled North from 
bondage, and now perhaps from bondage and destitution, but 
if gradual emancipation and deportation be adopted, they will 
have neither to flee from; their old masters will give them 
wages at least till new laborers can be found, and the freed- 
men will gladly give their labor in return, till new homes can 
be found for them in congenial climes and with people of 
their own blood and race. This proposition can be trusted on 
the mutual interests involved. And in any event, can't the 
North decide for itself whether to receive them?" 

Here we have distinctly recommended not only deporta- 
tion, with their consent, of the emancipated Negroes, but a 
distinct averment that emancipation was not to confer citi- 
zenship, as the right to exclude them from their borders is 
asserted for the Northern States. That they were an unde- 
sirable, not to say dangerous, population is admitted in the 
effort to show that emancipation would not be followed by an 
influx of freedmen into the North. This position, though ad- 
verse to the pretext under which the North refused admis- 
sion to the State of Missouri under the compromise of 1820, 
was, as we have seen, admitted by the most eminent Repub- 
licans, — Messrs. Seward, Trumbull, and King, — to be correct 
on the occasion of the admission of Oregon ; and it was acted 



The War and Its Purposes 107 

on by the majority of the Northern States in their laws 
against free Negroes, which, according to Mr. Dawes, before 
quoted, "disabled, disfranchised, and drove out from their 
borders free persons of African descent." 

As further proof of the firm fixedness of the Northern 
mind of the necessity of the colonization of Negroes, refer- 
ence is made to the Act of June 9, 1862, for the collection of 
the direct tax in the insurrectionary States, in which it was 
provided that of the proceeds of the leases of lands bought 
by the United States under the sale for the tax one-fourth 
part should be given to the States after the suppression of the 
rebellion "as a fund to aid in the emigration or colonization 
of any free person of African descent who may desire to 
remove therefrom to Hayti, Liberia, or any other tropical 
State or colony." 1 

Up to this point emancipation as a permanent thing, as 
resulting not only in freeing actual slaves, but also in pro- 
hibiting slavery thereafter, was contemplated only as the 
result of State action, each State acting for itself. The 
United States, as a means of ending successfully the war, 
was to aid only the States that were willing to emancipate. 
Mr. Lincoln's Emancipation Proclamation pretended to 
emancipate only the slaves then in esse and residing in cer- 
tain districts. The lawfulness of the institution of slavery 
was left untouched, and the power of the States to legalize 
the slavery of other persons than those that were then freed 
was in no sense denied. The proclamation provided for the 
emancipation of certain slaves, but attempted no prohibition 
of slavery. 

The war continued to be more and more to the advantage 
of the North. The resources of the South were being con- 
stantly exhausted, and the chances for her success had become 
desperate, even if it could be considered that any chance of 
success was left. 

On June 7, 1864, the Republican National Convention at 
Baltimore nominated Mr. Lincoln for reelection and named 
Andrew Johnson as a candidate for the Vice-presidency. 
This convention made the first authoritative declaration in 
favor of the abolishment of slavery by the direct action of 
the Federal Government, without the consent of the States, 
1 12 U. S. Statutes at Large, p. 425, Section 12. 



108 The Political History of Slavery in the United States 

and the first announcement of the determination to prohibit 
slavery forever in the United States. In their third resolu- 
tion, after denouncing slavery as the cause and strength of the 
rebellion, and hostile to justice and the national safety, the 
Convention declared further, "We are in favor, furthermore, 
of such an amendment to the Constitution, to be made by the 
people in conformity with its provisions, as shall terminate 
and forever prohibit the existence of slavery within the limits 
or the jurisdiction of the United States." x 

It will be noticed, however, that no declaration was made 
in favor of the citizenship of the Negro, notwithstanding the 
existence of the laws in most of the Northern States denying 
it and the well-known opinion of their candidate, Mr. Lincoln, 
as has been pointed out, and as will be illustrated by what 
follows. 

Although Mr. Lincoln had decreed in his proclamation of 
September 22, 1862, the freedom of slaves only in such States 
and parts of States as were not on January 1, 1863, represented 
in good faith in Congress, he did not promulgate any plan 
for such representation. He evidently regarded the existing 
laws fixing the apportionment of Representatives and direct- 
ing the election of Senators all the plan that was necessary. 

On December 8, 1863, however, he issued a proclamation 
on this subject. He offered amnesty, with certain exceptions, 
to all persons engaged in the rebellion that would take an 
oath to support and defend the Constitution and the Union 
thereunder, and that would also swear to support all the laws 
of Congress and all the proclamations of the President made 
during the rebellion with reference to slaves "so long and so 
far as not modified or declared void by decision of the Su- 
preme Court." 

He provided that whenever a number of persons in any 
of the States of Arkansas, Louisiana, Texas, Mississippi, Ala- 
bama, Georgia, Florida, South Carolina, North Carolina, and 
Tennessee, omitting Virginia, — not less than one-tenth of the 
votes cast for President in i860, and possessing the qualifi- 
cations fixed by law immediately before secession, and exclud- 
ing all others, — shall take such oath and establish a govern- 
ment Republican in form and in no sense contravening said 
oath, the State should receive the benefit of the clause in the 

1 Cooper's "American Politics," Book 2, p. 44. 



The War and Its Purposes 109 

Constitution by which the United States were agreed to guar- 
antee to each State a Republican form of government and to 
protect it against domestic violence and invasion. 

The proclamation contains this clause : 

"And I do further proclaim, declare, and make known 
that any provision that may be adopted by such State govern- 
ment in relation to the freed people of such State, which shall 
recognize and declare their permanent freedom, provide for 
their education, and which may be yet consistent as a tempo- 
rary arrangement with their present condition as a laboring, 
landless, and homeless class will not be objected to by the 
national Government." 

To avoid misunderstanding it was declared that the proc- 
lamation had no reference to States wherein loyal State gov- 
ernments had all the while been maintained. As to whether 
Senators and Representatives would be admitted, he declared 
that was a matter wholly for the two Houses of Congress. 

In this proclamation will be noted a change since the be- 
ginning of the year. Up to January 1, 1863, it was recog- 
nized, as before shown, that restoration to the Union would 
be recognized as accomplished by the mere act of the States 
themselves in sending in good faith a representation to Con- 
gress under existing laws. Now there was something else 
to be done, — there was to be a change of the State Constitu- 
tion prohibiting slavery, made effective by the taking of an 
oath against slavery by all who were allowed to participate in 
the reorganization, and as to those refusing the oath, there 
was not only to be no participation in the forming of the 
Government, but they were to remain liable to the pains and 
penalties imposed for rebellion. It will be further noted that 
reorganization, restoration, or reconstruction, whatever may 
be its proper name, was to be based solely on white suffrage, 
on voters having the qualifications prescribed by law at the 
date of secession. 

This proclamation contained undoubtedly the plan of res- 
toration that met Mr. Lincoln's judgment. It contemplated 
reconstruction by white men, "excluding all others." As to 
Negroes, it provided only for their freedom, and this, too, by 
State action, and it did not contemplate Negro citizenship and 
Negro suffrage. 

After the renomination of Mr. Lincoln on July 4, 1864, 



HO The Political History of Slavery in the United States 

Congress for the first time and for the only time during Mr. 
Lincoln's life provided a plan for restoration. The bill for 
that purpose was passed by both Houses and was entitled "A 
Bill to Guarantee Certain States, Whose Governments Have 
Been Overthrown, a Republican Form of Government." It 
provided the appointment of a provisional governor in each 
of the "States declared in rebellion," "who shall be charged 
with the civil administration of such State until a State gov- 
ernment shall be recognized therein as hereinafter provided." 

As resistance to the United States should be suppressed 
in any State the United States Marshal was required to enroll 
all the white male citizens of the United Stafes residents of 
the State and to request each one to take an oath to support 
the Constitution of the United States and to designate those 
who took the oath and those who refused it; and if those tak- 
ing the oath constituted a majority of the persons enrolled, the 
Governor was to invite the loyal people to elect delegates to 
a Convention for the re-establishment of a State Government 
subject to and in conformity with the Constitution of the 
United States. The Convention was to be composed of as 
many members as were in both houses of the last constitu- 
tional Legislature prior to secession, and were to be appor- 
tioned according to the white population returned as electors. 

The delegates to the Convention were to be elected by the 
loyal white male citizens of the United States, twenty-one 
years old, who should have taken the oath of allegiance to the 
United States in the form prescribed by the act of July 2, 
1862, which required a denial of any complicity in the rebel- 
lion. 

It will be noted that the disfranchisement as to voting ap- 
plied only to the electors for the delegates. 

It was required that when the Convention met it should 
declare, on behalf of the people of the State, their submission 
to the Constitution and laws of the United States, and that 
it should adopt and incorporate in the Constitution of the 
State the following provisions : 

"First. No person who has held or exercised any civil 
office, except offices merely ministerial and military offices 
below the grade of Colonel, under the Confederacy or any 
Confederate State, shall vote for or be a member of the Leg- 
islature or Governor." Thus the disfranchisement was lim- 



The War and Its Purposes ill 

ited to voting for and holding these two offices, Confederates 
being allowed to hold any other office and to vote for any other 
officer than these. 

"Second. Slavery is forever prohibited and freedom of 
all guaranteed in said State. 

"Third. Repudiation of all debts, State and Confederate, 
made in aid of the rebellion." 

This was the congressional scheme of reconstruction, and 
it differed from the President's mainly in requiring that pro- 
ceedings for reconstruction should be initiated by and con- 
summated under Federal officers, and in disfranchising in 
those proceedings all persons that had in any way aided or 
sided with the Confederacy, instead of disfranchising also 
those that had recanted and renounced Confederate allegiance 
by taking the prescribed oath, and in requiring not only that 
these loyal men should be a majority of the white male adults, 
but that said majority should actively participate in the pro- 
ceedings, instead of allowing one-tenth of the white males to 
reorganize the Government. 

It was also provided that when a Constitution should be 
formed in accordance with the Act, and a copy thereof sent 
to the President, he, after obtaining the assent of Congress, 
should recognize the Government so established, and that from 
that date, and not before, the State might elect Senators and 
Representatives and electors for President and Vice-presi- 
dent. 

The provisional Governor was to execute the laws of the 
State as they existed at the date of secession, except those 
relating to slavery and making a discrimination against col- 
ored persons in trials for and punishment of crimes. Jurors 
were to have the qualification of electors, that is, were to be 
only white adult males who were not involved in the guilt of 
rebellion; and taxes were to be collected under the tax laws 
that were in force at the date of secession. 

By section twelve slavery was abolished and prohibited 
forever in the Confederate States; and by section thirteen 
heavy fines and long imprisonment were imposed on those 
who should deprive freedmen of their liberty. 

By section fourteen it was enacted, "That every person 
who shall, after the passage of the Act, hold or exercise any 
office, civil or military, except offices merely ministerial and 



112 The Political History of Slavery in the United States 

military offices below the grade of Colonel, in the rebel ser- 
vice, State or Confederate, is hereby declared not to be a 
citizen of the United States." 

This was substantially the scheme of Congress for recon- 
struction. It received the sanction of Congress on July 4, 
1864. The war was then substantially ended. The condition 
of the Confederacy was so desperate that it was evident that 
the struggle could be continued but a few months longer. So 
the plan outlined above was the deliberate scheme of Congress 
that was soon to be put into operation for the permanent and 
final settlement of all questions about reconstruction. The 
bill was presented to Mr. Lincoln for his approval or disap- 
proval just one hour before the adjournment sine die of Con- 
gress. He retained the bill without approval or disapproval, 
whereby it failed to become a law. Four days thereafter he 
issued his proclamation, in which he stated his failure to ap- 
prove the bill, but he laid it before the people, as it contained 
the sense of Congress. He also stated that he was unpre- 
pared by formal approval of the bill to be inflexibly committed 
to any single plan of restoration, and was also unprepared to 
declare that the free State governments already adopted in 
Arkansas and Louisiana should be set aside and held for 
naught, or to declare the. constitutional competency of Con- 
gress to abolish slavery in the States ; yet he hoped that a con- 
stitutional amendment abolishing slavery would be adopted, 
and he continued, "Nevertheless, I am fully satisfied with the 
system for restoration contained in the bill as one very proper 
plan for the loyal people of any State choosing to adopt it." 
He stated that he was willing to aid such people "as soon as 
the rebellion shall have been suppressed in any State and the 
people thereof shall have been sufficiently returned to their 
obedience, in which cases Military Governors will be ap- 
pointed with directions to proceed according to the bill." 

To the Proclamation was appended a copy of the bill. 
There were differences between the President and Congress 
as to whether restoration was an executive or a legislative act. 
Mr. Lincoln in this proclamation solemnly asserts the execu- 
tive power. He adopts the legislative plan, not because it was 
law, for it was not law, nor because Congress had power to 
make it law; but, on the contrary, he gives the plan its only 
operative force by adopting it as an executive measure; and 






The War and Its Purposes 113 

by substituting "military" for "provisional" Governor he 
made it distinctly and unequivocally an executive act. But 
whilst these differences existed, there was perfect agreement 
as to white suffrage, both Congress and the President agree- 
ing that white suffrage alone was the only proper basis of po- 
litical power in the Southern States. Congress had been 
vindictive indeed in several provisions of the bill, — in confin- 
ing suffrage to white persons of undoubted loyalty, untainted 
with any previous sympathy with the rebellion, and excluding 
all others; in requiring that no restoration should take place 
until such persons should constitute a majority of the white 
male adults, and in the attempt to deprive of their citizenship 
in the United States the persons named in the fourteenth sec- 
tion; yet there was no evidence in any provision of the bill 
that persons of African descent were deemed fit depositaries 
of political power then or thereafter, or to be intrusted with 
the duties of citizenship; but the bill in the plainest and strong- 
est terms affirmed the contrary. That was also the position 
of Mr. Lincoln. On this point there was no disagreement. 
As it eventuated, it was a serious misfortune to the whole 
country that Mr. Lincoln's scruples would not allow him to 
approve the bill. In case of approval, it might, and probably 
would, have turned out that reconstruction would have taken 
place under the terms of the bill. As it was, not one of the 
scruples that prevented his signing the bill was respected by 
any subsequent Congress. The free State governments of 
Louisiana and Arkansas, and even of Virginia, were over- 
turned, and the power of Congress not only to abolish slavery 
in these States but to invest the slaves with the elective fran- 
chise was asserted and exercised. 

If more proof be needed of the deliberate opinion and 
judgment of Congress as to the competency and unfitness of 
the Negro for citizenship and the impropriety of giving him 
the elective franchise, attention is called to the Act to enable 
Nevada to form a Constitution for admission into the Union, 
— an act, passed in the same year, 1864, in which suffrage 
was confined to whites, — and to the further fact that in pur- 
suance of a Constitution so formed, which expressly confined 
suffrage to whites, Nevada was admitted by Proclamation of 
Mr. Lincoln on October 31st of that year, — 1864. An en- 
abling Act for Nebraska with similar provisions was passed 



114 The Political History of Slavery in the United States 

in the same year. Under that Act, in February, 1866, a Con- 
stitution was framed expressly confining suffrage to whites. 
After the controversy between President Johnson and Con- 
gress had grown bitter Congress admitted Nebraska, February 
9, 1867, but with a condition that Negroes should be admitted 
to vote, — there being in the State just eighty-two persons of 
that class of all ages, sexes, and conditions, as was shown by 
the preceding census. 

As further proof on this subject reference is made to the 
action of Congress in February, 1865, just on the eve of the 
collapse of the Confederacy, in proposing the Thirteenth 
Amendment. By this nothing more was claimed for the 
Negro than exemption from slavery. 

Such was the position of the Federal Government as ex- 
emplified by the action of both executive and legislative 
departments in the most solemn public acts immediately pre- 
ceding the final overthrow of the Confederacy. There was no 
hint that the Southern people on the surrender of their arms 
were to be subjected to the incompetent and corrupt govern- 
ment founded on Negro suffrage. 

Such was the situation when the war ended. 

Immediately on the final surrender of the Confederate 
armies, Mr. Lincoln having been assassinated but a few days 
prior thereto, President Johnson, following exactly the foot- 
steps of Mr. Lincoln, appointed provisional governors for all 
the Southern States except Virginia, Arkansas, and Louisi- 
ana, in which loyal governments already existed. His re- 
quirements for reconstruction were the abolition and prohibi- 
tion of slavery in those States, the ratification of the Thir- 
teenth Amendment to the Constitution, and the repudiation 
of the State and Confederate debts created in aid of the 
rebellion. Under this proclamation the Southern States called 
conventions, made new Constitutions as required, and elected 
Senators and Representatives to the thirty-ninth Congress, 
which met on the first Monday in December, 1865. 

When the final surrender came there was exhibited for the 
philosopher and the moralist a scene of the deepest interest, — 
a scene unparalleled in human affairs. 

Eleven Southern States, once the proud equals of their co- 
States, and eight millions of Anglo-Saxon people who had 
never bowed their necks to a conqueror lay prostrate at the 



The War and Its Purposes 115 

feet of the victor. These States and this people, under diffi- 
culties that proved insurmountable, under trials and distresses 
that tested the manhood and constancy of the most heroic, 
had maintained their cause and their rights until further re- 
sistance was madness. These States had been overrun by 
invading armies; cities, towns, and villages had been de- 
stroyed, and houses that once had been the abiding place of 
elegance, wealth, culture, and refinement were now sad and 
silent. The bravest and best of the Southland filled unmarked 
graves on battlefields on which the grand heroism of a race, 
until then never subjugated, had been illustrated, or were left, 
bereft of all earthly possessions, to mourn over a defeat that 
no human skill, no human prowess, could have averted. With 
blighted hopes and crushed aspirations, they were brought 
face to face with that most terrible of all ordeals to freemen, — 
submission to the will, whatever it might be, of irresistible 
and irresponsible power. This situation was made even more 
bitter by the memory that they had once been equals in a 
proud republic. They were co-heirs with their conquerors of 
that rich heritage of self-government that had been won from 
a great power beyond the sea by their common efforts and 
common sacrifices. 

Nor was the thought the less bitter because in that contest 
for independence and liberty these States had contributed the 
great statesman who had drafted the Declaration that justified 
resistance to wrong and the great captain without whose 
genius and patriotism the victory could not have been won. 
Then, after having successfully secured the rich blessings of 
independence and liberty to all sections, the South had con- 
tributed her full share to the inauguration of the government, 
in the framing of such policies and measures as had caused 
the very greatness and strength to which she was now the vic- 
tim. A Southern statesman had placed the infant and weak 
Republic among the nations of the world, had guided it with 
such wisdom as to keep it from wreck, and had placed it on 
the footing that had presaged its future grandeur and power. 
After an interval of four years of another administration the 
people had again turned to the South for the statesmanship 
that was to secure prosperity at home and respect abroad, and 
had continued under that leadership for six Presidential 
terms. 



Il6 The Political History of Slavery in the United States 

And it must be remembered that the original limits of the 
Union were between the Atlantic and the Mississippi, the 
Lakes and the Gulf, with an important territory inside of these 
bounds still under foreign dominion; that it was through 
Southern statesmanship that this territory as well as the mag- 
nificent domain extending from the Mississippi to the Pacific 
Ocean, from the British dominions on the north to the Mexi- 
can Republic on the south, had been acquired, and that these 
extensions of territory had been bitterly opposed and de- 
nounced by the conquering section. From this added terri- 
tory had come the power and the strength that had made the 
antagonists of the South irresistible. 



LEGISLATIVE HISTORY OF 
RECONSTRUCTION 

BOOK II 



CHAPTER I 

FIRST STEPS IN RECONSTRUCTION 

The war ended. The Thirteenth Amendment had passed 
Congress and had been submitted to the States for their ac- 
tion. The Southern States through their Legislatures, con- 
vened under President Johnson's scheme of reconstruction, 
had ratified the amendment and elected to Congress Senators 
and Representatives who had applied for admission to their 
seats. There had already appeared a divergence in the views 
of the Executive and Legislative departments, both as to the 
terms of reconstruction and as to which of these departments 
had the constitutional power to prescribe these terms. The 
President had followed the plan and adopted the constitu- 
tional views of his predecessor, Mr. Lincoln, which would 
have reconstruction as the result of Executive action. Con- 
gress insisted on their jurisdiction in the matter. Early in the 
first session of the thirty-ninth Congress a concurrent resolu- 
tion was passed by the Senate and the House, by which a 
mutual pledge was given that neither House would admit 
representatives of the Southern people or of the States, ex- 
cept in pursuance of the joint action of both. 

A joint committee on reconstruction was organized, to 
which all propositions looking to reconstruction of the South- 
ern States were to be referred. 

Then came from members of the dominant party numer- 
ous propositions looking to reconstruction. It is wholly un- 
necessary to set out all these propositions, except to say that 
they all looked to a diminution of the political power of the 
Southern States. As universal emancipation had already been 
accomplished by the ratification of the Thirteenth Amendment, 
it was clear that under the Constitution as it then stood there 
would be a large increase in the political power of the South- 
ern States, both in the House of Representatives and in the 
Electoral College; the three-fifths representation of slaves 

119 



120 The Political History of Slavery in the United States 

had failed for want of subjects to operate on, and in lieu of 
it had come a full representation of all persons of African 
descent. There were those who desired by national action to 
confer on persons of African descent the elective franchise, 
but they were in a small minority. But there seemed to be 
no dissent to the proposition that if they were not allowed to 
vote in the Southern States, — that if they were disfranchised 
in the South as they were in nearly all the Northern States, — 
it would be unjust to admit them as elements of political 
power in the Southern States where they resided in large 
numbers. The effort was to effect this diminution without at 
the same time recognizing by national law the unfitness of 
the freedmen for the discharge of political duties. 

A representative proposition is that offered by Senator 
Wilson, of Massachusetts, as an amendment to the Constitu- 
tion. It was offered on April 27, 1866. It contained the 
following provisions : 

1. Prohibition against the United States or any State 
making payment for emancipated slaves, or of any debt con- 
tracted in aid of the rebellion. 

2. Following the Constitution as to apportionment of 
Representatives in Congress according to population, it pro- 
vided that when in any State the elective franchise is denied 
to any male citizen of the United States above twenty-one 
years of age, for any cause except for insurrection or rebel- 
lion against the United States, there should be a reduction in 
the basis of representation of such State in the proportion 
that such male citizens so excluded bear to the whole number 
of males in the State over twenty-one years of age. 

Section two of the bill provided that whenever any one 
of the insurrectionary States should ratify the above pro- 
visions, Senators and Representatives should be admitted 
from such States as if they had been elected from States that 
had never been in insurrection. 

Many propositions of similar import to amend the Con- 
stitution, propositions that were designed to reduce the repre- 
sentation of the Southern States if Negroes were excluded 
from voting, were presented in both Houses, — by Messrs. 
Sumner, Dixon, and Grimes in the Senate, and by Messrs. 
Schenck, Thaddeus Stevens, Broomall, and Pike in the 
House. 






First Steps in Reconstruction 121 

On January 22, 1866, Mr. Stevens, from the joint com- 
mittee on reconstruction, reported favorably House Bill No. 
51, apportioning representatives and direct taxes according to 
population; but with a proviso that if suffrage be denied or 
abridged in any State on account of race, color, and so on, 
then such race should be excluded from the basis of repre- 
sentation of such State. 

On reporting this bill, Mr. Stevens said : "There are 
twenty-two States whose Legislatures are now in session, 
some of which will adjourn within two or three weeks. It is 
very desirable, if this amendment is to be adopted, that it 
should go forth to be acted upon by the Legislatures now in 
session. ... It does not deny to the States the right to regu- 
late the elective franchise as they please; but it does say to 
a State: 'If you exclude from the right of suffrage French- 
men, Irishmen, or any particular class of people, none of that 
class of persons shall be counted in fixing your representation 
in this House. You may allow them to vote or not, as 
you please; but if you do allow them to vote, they will 
be counted and represented here; while, if you do not 
allow them to vote, no one shall be authorized to represent 
them here.' " x 

Mr. Wilson, of Iowa, said that the Judiciary Committee 
of the House had had the same subject under consideration, 
and had, after careful consideration, reached the same con- 
clusion. It is thus seen that these two great committees after 
careful consideration, separate from and independent of each 
other, had reached the conclusion that the right to control and 
regulate suffrage was to remain with each State, but if any 
State should restrict it on account of race or color, then such 
restriction should operate to diminish pro tanto the political 
power of the State in Congress and in the Electoral College. 
The idea that the regulation of suffrage to any extent should 
be assumed by the General Government was expressly repudi- 
ated. The proposition was to diminish the political power 
of the Southern States unless they provided for Negro suf- 
frage. 

Mr. Conkling made this view very evident in the remarks 
he submitted in favor of the report of the committee. He 
argued that unless the report of the committee was made a 
1 Congressional Globe, 39th Congress, 1st Session, Part I, p. 351. 



122 The Political History of Slavery in the United States 

part of the Constitution, a given number of whites in Missis- 
sippi would have three votes to one for the same number of 
whites in New York. To remedy this, he said, there were 
three methods : 

i. To make the qualified voters in each State the basis 
of representation. 

2. To prohibit the States from discriminating as to suf- 
frage on account of race or color. 

3. To leave the States to decide for themselves who 
were fit for suffrage ; and if a class be adjudged unfit, then 
to exclude that class from representation. 

Proceeding to argue these propositions, Mr. Conkling 
said : "The second plan mentioned, the proposition to pro- 
hibit States from denying civil or political lights to any class 
of persons, encounters great objection on the threshold. It 
trenches upon the principle of existing local sovereignty. It 
denies to the people of the several States the right to regulate 
their own affairs in their own way. It takes away a right 
which has been always supposed to inhere in the States and 
transfers it to the General Government. It meddles with a 
right reserved to the States when the Constitution was 
adopted, and to which they will long cling before they sur- 
render it. No matter whether the innovation be attempted in 
behalf of the Negro race or any other race, it is confronted 
by the genius of our institutions. But more than this. The 
Northern States, most of them, do not permit Negroes to 
vote. Some of them have repeatedly and lately pronounced 
against it." 1 

There seems to have been some difficulty as to fixing a 
different basis for representation and for direct taxation. So 
the proposition was recommitted and on January 31st it was 
again reported from the Committee on Reconstruction with 
the words "direct taxes" stricken out. 

Mr. Schenck (from Ohio) moved an amendment to the 
effect that representation should be based on an enumeration 
of the legal voters for the most numerous branch of the State 
Legislature of each State. 2 

This proposition, whilst it equally struck at the political 
power of the Southern States, as did the measure of the com- 

1 Globe, 39th Congress, 1st Session, p. 358. 

2 Ibid., p. 535- 



First Steps in Reconstruction 123 

mittee, was supposed to increase the political power of the 
West as compared with the East. This contest between the 
East and the West will appear very distinctly hereafter. 

Mr. Stevens, in support of the proposition of the com- 
mittee, among other things said : "Now I hold that the 
States have the right, and always have had it, to fix the elec- 
tive franchise. . . . And I hold that this does not take it 
from them. Ought it to take it from them? Ought the 
domestic affairs of the States to be infringed upon by Con- 
gress so far as to regulate the restrictions and qualifications 
of their voters? How many States would adopt such a 
proposition? How many would allow Congress to come 
within their jurisdiction to fix the qualifications of their vot- 
ers? Would New York? Would Pennsylvania? Would 
the Northwestern States? I am sure not one of them would. 
Therefore, if you should take away the right which now is 
and always has been exercised by the States, by fixing the 
qualification of the electors, instead of getting nineteen 
States, which is necessary to ratify this amendment, you 
might possibly get five. I venture to say you could not get 
five in this Union." x 

Mr. Stevens continued: "Now, any man who knows 
anything about the conditions of aspiration and ambition for 
power which exists in the slave States knows that one of 
their chief objects is to rule this country. It was to ruin it 
if they could not rule it [sic]. They have not been able to 
ruin it, and now their great ambition will be to rule it. If a 
State abuses the elective franchise and takes it from those 
who are the only loyal people there, the Constitution says to 
such a State, 'You shall lose power in the halls of the nation, 
and you shall remain where you are, a shriveled and dried up 
nonentity instead of being the lords of creation, as you have 
been, so far as America is concerned, for years past.' Now, 
sir, I say no more strong inducement could ever be held out 
to them, no more severe punishment could ever be inflicted 
upon them as States. If they exclude the colored population 
they will lose at least thirty-five representatives in this Hall. 
If they adopt it they will have eighty-three votes. Take it 
away from them and they will have only from forty-five to 
forty-eight votes, all told, in this Hall ; and then, sir, let them 

1 Globe, 39th Congress, 1st Session, p. 536. 



124 The Political History of Slavery in the United States 

have all the copperhead assistance they can get, and liberty 
will still be triumphant." x 

Mr. Stevens, in the same speech, in urging- several objec- 
tions to the amendment offered by Mr. Schenck, fixing repre- 
sentation on the basis of the number of electors for the most 
numerous branch of the Legislatures of the several States, 
said : "There are fifteen or twenty Northern representatives 
that would be lost by that amendment and given to the 
South whenever they grant the elective franchise to the 
Negro." 2 

From these extracts from the debates it is made evident 
that whatever may have been the private wishes of some of 
the members as to the propriety of Negro suffrage its en- 
forcement on the South by Federal power met with little 
favor, even in the House. There was still less for it among 
the people themselves. Mr. Stevens, whose sympathy for 
such enforcement at some time was not concealed, declared 
that the proposition would not receive the support of five 
States in the Union. This was about one year after the sur- 
render at Appomattox, so that if Negro enfranchisement 
was, indeed, one of the ends for which the war was fought, 
such end was condemned by the almost unanimous judgment 
of the Northern people themselves. 

It will be noted also that in the amendment, as reported 
by the Reconstruction Committee, even so far as the con- 
quered States of the South were concerned, the proposition 
was not to enforce Negro suffrage, but only to curtail their 
representation if suffrage was not conceded to the Negro. 
This curtailment was advocated because ft was a severe pun- 
ishment to the Southern States. 

But especial attention is called to the opposition to the 
enforcement of Negro suffrage by Federal law as expressed 
by Mr. Conkling. He declared that such enforcement would 
trench upon the principle of local sovereignty in the States, 
deny their right to manage, as they always had, their do- 
mestic affairs in their own way, a right which had always 
been supposed to inhere in the States, which was reserved to 
them when the Constitution was formed, and to which they 
would long cling. Finally, he declared that it would be an in- 

1 Globe, 39th Congress, 1st Session, p. 536. 
8 Ibid., p. 537- 



First Steps in Reconstruction 125 

novation that was "confronted by the genius of our institu- 
tions." 

The proposed amendment to the Constitution passed the 
House of Representatives as it had been reported by the Com- 
mittee. 

When the question came up in the Senate, Mr. Sumner 
opposed the amendment in an elaborate speech of very great 
ability, contending, among other things, that the amendment 
proposed by the committee conceded to the States the power 
to disfranchise Negroes, a power that they did not then have 
under the Constitution. 

Mr. Fessenden, the Senate Chairman of the Joint Recon- 
struction Committee, replied; and whilst confessing his sym- 
pathy to some extent with Mr. Sumner's views, he yet sup- 
ported the proposition of the committee, arguing against an 
amendment to the Constitution prohibiting discrimination as 
to Negro suffrage on account of race and so on. He said : 
"It would place the States which have recently been slave 
States in this condition, that they must either limit the suf- 
frage too far, or they must extend it too far for their own 
safety, or, at any rate, for what might be presumed to be 
their own good. I take it no one contends, — I think the 
honorable Senator from Massachusetts himself, who is the 
great champion of universal suffrage, would hardly contend, 
— that now at this time the whole mass of the population of 
the recent slave States is fit to be admitted to the exercise of 
the right of suffrage. I presume no man who looks at the 
question dispassionately and calmly could contend that the 
great mass of those who were recently slaves (undoubtedly 
there may be exceptions) and who have been kept in ignorance 
all their lives, oppressed, more or less forbidden to acquire 
information, are fit at this day to exercise the right of suf- 
frage, or could be trusted to do it, unless under such good 
advice as those better able might be prepared to give them." 1 

Mr. Fessenden, in another part of his speech, declared 
that it could not be put out of sight that slavery had existed 
from the foundation of the Government and that it had been 
abolished within one or two months, and "that there are left 
in several of the States of the Union a large number of per- 
sons ignorant and uneducated, who, up to a very recent 

1 Globe, 1 st Session, 39th Congress, p. 704. 



126 The Political History of Slavery in the United States 

period, have been held in bondage, considered by the Constitu- 
tion itself as entirely unfit to be counted as a part of the peo- 
ple of the United States and represented as a whole." * 

So far Mr. Fessenden, in arguing against a proposition, 
in substance the same as the Fifteenth Amendment, whilst con- 
fessing his sympathy for it, contented himself with stating 
the very serious objection that the great mass of the Negroes 
were wholly unfit for suffrage, and that such an extension 
would go too far for the safety of the Southern States. He 
confessed that this answer that he had made did not satisfy 
himself. Proceeding, he said : "But the argument that ad- 
dressed itself to the committee was, what can we accomplish? 
What can pass? If we report a provision of this kind [in sub- 
stance the Fifteenth Amendment] is there the slightest prob- 
ability that it will be adopted by the States and become a part 
of the Constitution of the United States? It is perfectly evi- 
dent that there could be no hope of that description. ... I 
might appeal to the vote which was taken in one of our New 
England States [Connecticut], rejecting a proposition which 
proposed to do away with all distinctions between men on 
account of color. . . . We must take men as we find them." 
Speaking of the opposition of the States to such an amend- 
ment, he said: "It would be a mere idle proposition, one 
that would not commend itself to anybody, not in the first 
place to Congress itself, and not in the second place to the 
States themselves." 2 

Here, by one of the great leaders of Northern sentiment, 
one who sympathized with the view that Negroes ought to be 
admitted to suffrage, was declared in the most emphatic 
manner : 

First. The unfitness of the Negro for the exercise of 
political rights. 

Second. That Negroes were considered by the Constitu- 
tion of the United States as entirely unfit to be counted a part 
of the people of the United States as a whole. 

Third. That a proposition to enfranchise them could 
receive neither the assent of Congress nor the ratification of 
the people of the States. 

Mr. Sumner saw a way to dispense with the two-thirds 

1 Globe, ist Session, 39th Congress, p. 703. 

2 Ibid., p. 704. 






First Steps in Reconstruction 127 

vote of Congress required in passing an amendment to the 
Constitution, and also to dispense with the action of the 
States. As before stated, he held that the power already ex- 
isted in Congress to enfranchise the Negro. So he proposed 
as a substitute for the proposed amendment recommended 
by the committee the following as a statute: 

"That in all the States lately declared to be in rebellion 
there shall be no oligarchy, aristocracy, caste, or monopoly 
invested with peculiar privileges and powers, and there shall 
be no denial of rights, civil or political, on account of color or 
race, but all freemen shall be equal before the law, whether in 
the court room or at the ballot box; and this statute made in 
pursuance of the Constitution shall be the supreme law of the 
land, anything in the Constitution and laws of any such State 
to the contrary notwithstanding." On this proposition of 
Mr. Sumner, which it will be noted applied only to the 
Southern States, the ayes were eight, — Brown, Chandler, 
Howe, Pomeroy, Sumner, Wade, Wilson, and Yates, — and 
the nays thirty-nine. 

Mr. Sumner then moved an amendment to the proposi- 
tion reported by the committee in these words : "And the 
elective franchise shall not be abridged in any State on ac- 
count of race or color." For that the same eight senators 
voted ; the remainder who were present, thirty-eight, voted in 
the negative. 

These two votes show the strength at that time of the 
proposition to enforce Negro suffrage by Federal action. 
There were eight senators who voted to enforce Negro suf- 
frage on the Southern States alone, as was the proposition in 
Mr. Sumner's amendment ; and the same eight, being defeated 
in that, were willing to impose it on all the States, by an 
amendment to the Constitution. 

The proposition reported by the committee to amend the 
constitution failed to pass the Senate. Ayes, twenty-five; 
nays, twenty-two; two-thirds not voting for it. A motion 
to reconsider was made and sustained, but no final action was 
ever afterward taken on it. 

Thus ended the first effort to amend the constitution as 
one of the prerequisites of reconstruction. 

In the meantime there were several propositions to impose 
Negro suffrage on the South, leaving the Northern States 



128 Thr Political History of Slavery in the United States 

free to act upon that subject as they deemed proper for their 
own interest. In fact, as has been shown, the Northern 
States except some States in New England were bitterly op- 
posed to admitting Negroes to a share of political power 
within their respective limits. They were even opposed to 
the immigration and settlement within their borders of per- 
sons of African descent. Yet there was a strong feeling 
that such suffrage should be imposed on the South. In many 
instances this feeling had for its foundation the desire to in- 
flict it as a punishment on the Southern States, as is shown in 
the extract from Mr. Stevens' speech. The conviction was 
not uncommon among those favoring Negro suffrage that 
they were unfit for the exercise of political power to an ex- 
tent that rendered their enfranchisement unsafe to the South- 
ern States. (See Mr. Fessenden's speech above.) 

One of the most important of the propositions to impose 
Negro suffrage on the South alone was a resolution * that 
was introduced into the Senate by Mr. Wilson, of Massa- 
chusetts, on March 5, 1866. 

The resolution provided that each of the ten insurrec- 
tionary states (omitting Tennessee) should be entitled to 
representation in Congress and to resume complete practical 
relations with the United States whenever its Legislature 
should adopt the following irrepealable fundamental condi- 
tions : 

1. That all laws, statutes, and ordinances heretofore in 
force in such State requiring inequality in civil rights among 
its inhabitants founded on distinctions of race, color, or de- 
scent, or previous condition of servitude, be declared null 
and void ; and declaring also that it shall be forever unlawful 
to make or enforce such laws, statutes, and ordinances. 

2. There shall be no discrimination in civil rights on 
account of color, race, descent, or previous condition of ser- 
vitude ; but all inhabitants shall have the same right to make 
and enforce contracts, to sue and to be parties, give evidence 
in all courts and causes, to inherit, purchase, lease, sell, and 
convey real and personal estate, and shall have the full and 
equal benefit of laws for the protection of person and prop- 
erty, and be subject to the same penalties and punishments, 
and none other. 

1 S. R. No. 37, 39th Congress, 1st Session. 



First Steps in Reconstruction 129 

3. The right of voting for President, Vice-president, 
Representatives in Congress, and members of the State Leg- 
islatures shall be granted to the following persons of African 
descent : A. Males over twenty-one years of age enrolled 
in the army or navy of the United States. B. Also those 
who pay a tax on real or personal property, or who are able 
to read the Constitution of the United States, and who pos- 
sess the other qualifications required by the Constitution of 
the States not inconsistent herewith. 

4. Repudiation of the debt contracted in aid of the re- 
bellion and a release of all claims for emancipated slaves. 

These were made irrepealable under any circumstances 
whatever. 

In this scheme of reconstruction it will be noted that the 
legality of the Southern States Governments was fully recog- 
nized, as the adoption of those important provisions was left 
to their several Legislatures as then organized. It will be 
further noted that the elective franchise was only to be 
granted to persons of African descent who were duly enrolled 
in the United States army or navy, or who owned real or 
personal property on which they paid taxes, or who could 
read the Constitution of the United States. Even Mr. Wil- 
son shrank from imposing on the Southern States suffrage 
for the large mass of ignorant voters of the African race, 
whose enfranchisement Mr. Fessenden had stated could not 
take place with safety to the Southern States. The enfran- 
chisement provided for was only partial and incomplete. It 
extended only to voting for such offices as related particularly 
to the political power the State should exercise under national 
government, — that is, to the election of President, Vice-presi- 
dent, and Representatives in Congress, and to that State or- 
ganism that had the power to elect Senators in Congress. As 
to all officers whose functions related exclusively to the inter- 
nal and domestic administration of the State government, 
each State was left free to decide by whom they should be 
elected. 

Eleven days after this, on March 16th, and after the fail- 
ure in the Senate of the first reconstruction amendment to 
the Constitution, as reported by the joint Committee on Re- 
construction and passed by the House of Representatives, 
Mr. Stewart, of Nevada, introduced a joint resolution for 



130 The Political History of Slavery in the United States 

reconstruction. 1 This, like Mr. Wilson's, did not contemplate 
an amendment of the Constitution of the United States, but 
proceeded on the idea that its passage was within the power 
of Congress. 

The resolution provided for a full resumption of the Fed- 
eral relations of any insurrectionary State whenever such 
State should provide by an amendment of its Constitution 
for the full civil rights of Negroes, repudiate its rebel debt, 
surrender all claim to compensation for emancipated slaves, 
and provide for the extension of the elective franchise to all 
males twenty-one years old, without distinction as to color, 
race, and so on. In this it will be again seen that the State 
Governments then existing in the South were accepted as 
competent to discharge the highest political duties and fully 
invested with all powers belonging normally to State gov- 
ernments; and so strong was this conviction in the mind of 
the author of the resolution that in another part it was pro- 
vided that the ratification of the amendment to the State 
Constitution should be by a majority of the voters as they 
were defined by law in the year i860. 

So strong, however, was the feeling against this assump- 
tion of power by the Federal Government to regulate or in 
any way interfere with the franchise in the Northern States 
that it was stated in the third resolution that, in view of the 
importance of thorough assimilation of the basis of suffrage 
in all the States, the other States were requested to amend 
their Constitutions in accordance with the above resolutions. 
But lest this mere request, — so sensitive were the Northern 
States on this subject, — should be construed to mean an 
assumption of power over the franchise in the States 
by the Federal Government, a fourth resolution was ap- 
pended. 

This fourth resolution declared that in adopting the fore- 
going it was not intended to assert a coercive power in regard 
to the regulation of the right of suffrage in the different 
[sic] States of the Union, but only to make a respectful and 
earnest appeal to their own good sense and love of country, 
with a view to the prevention of serious evils then threatened 
and to the peaceful perpetuation of the repose, the happiness, 
and true glory of the American people. 
1 S. R. No. 48, 39th Congress, 1st Session. 



First Steps in Reconstruction 131 

On April 6th Senator Lane, of Kansas, offered a resolu- 
tion for reconstruction which, so far as suffrage was con- 
cerned, required the Southern States to provide for the right 
to vote of colored males over twenty-one years old who could 
read the Constitution of the United States in the English lan- 
guage and write their names, and also of those who owned 
$250 worth of real estate and paid taxes thereon. 

These facts will suffice to show how deep was the con- 
viction that it would not do to interfere with suffrage in the 
Northern States, and also how even the most radical anti- 
slavery Senators shrank from propositions to enforce uni- 
versal Negro suffrage even in the South, for they required 
educational or property qualifications for such voters in the 
South. 



CHAPTER II 

THE FOURTEENTH AMENDMENT 

On April 30, 1866, the Joint Committee on Reconstruc- 
tion, after a full consideration of all the various propositions 
and after a discussion of the subject by both Houses that 
occupied the greater part of four months, reported a propo- 
sition to amend the Constitution, — a proposition that was the 
basis of the Fourteenth Amendment as it now exists. 

The first section of this proposition is the first section of 
the Fourteenth Amendment as it now stands, except that it 
did not contain the first clause, which defines citizenship. 

The second section is the same as the second section of the 
Fourteenth Amendment, except that it used the words "elec- 
tive franchise" instead of "the right to vote" for the officers 
specifically named in that section of the Fourteenth Amend- 
ment. 

The third section, as proposed by the committee, disfran- 
chised until the 4th of July, 1870, all persons who volun- 
tarily aided in the rebellion from voting for electors for Presi- 
dent, Vice-President, and representatives in Congress. As 
it now stands it contains a disfranchisement from holding 
office but says nothing as to suffrage. 

The fourth section as proposed is as it now stands, ex- 
cept that it did not contain the provision about the inviola- 
bility of the public debt. 

The fifth section is the same as the fifth section as it now 
stands. 

It will be noted that as to Negro suffrage the provision 
was the same as in the first report of the committee on recon- 
struction before noticed, — a provision that passed the House 
and failed in the Senate. The provision merely diminished 
the representation in Congress of any State excluding Ne- 
groes from suffrage. 

It is now seen clearly what was the final judgment of the 

132 



The Fourteenth Amendment 133 

committee, after months of consideration, on the subject of 
the elective franchise, — a judgment that was ratified by Con- 
gress. On this point the proposition was that if any State 
should exclude Negroes, or in fact any male citizen of the 
United States twenty-one years old, from suffrage except 
for participation in rebellion or other crime, there was to be 
a proportionate reduction in its representation in Congress. 

In this it is seen how carefully Congress guarded against 
an infringement of the right of each State to regulate the 
franchise within her borders, how scrupulously it respected 
what Mr. Conkling had denominated "the genius of our free 
institutions," how vigilant it was that nothing should be 
inserted that would diminish essentially the power of any 
Northern State. It had been ascertained in debate that some 
of the Northern States allowed aliens to vote on a mere dec- 
laration of intention to become citizens and that in others 
the franchise was confined to citizens. So when it was pro- 
posed to apportion representation according to the number 
of actual voters, it was objected that this would operate to 
diminish the power of those States that had a large foreign 
population not yet naturalized and that confined suffrage to 
citizens. So also in framing the amendment it was arranged 
that whatever rule a State should prescribe on this subject, 
it should not affect her political power. 

THE BILLS ACCOMPANYING THE AMENDMENT 

At the same time that this proposition for the amendment 
of the Constitution was reported by the committee they also 
reported two other bills on the subject of reconstruction. 

One of these was entitled "A Bill to Restore the States 
Lately in Insurrection to their Full Political Rights." The 
preamble declared, "It is expedient that the States lately in 
insurrection shall at the earliest day consistent with the future 
peace and safety of the Union be restored to full participation 
in all political rights," and it then recited the submission by 
Congress of the Fourteenth Amendment and copied it in 
full, as proposed by the committee. 

The bill then enacted that whenever the said proposed 
amendment should have become a part of the Constitution of 
the United States, and any of such insurrectionary States 



134 The Political History of Slavery in the United States 

should have ratified the same and should have modified its 
Constitution and laws in conformity therewith, the Senators 
and Representatives from such State, if found duly elected 
and qualified, might, after having taken the required oath of 
office, be admitted into Congress as such. 

The second section of the bill, as a further inducement to 
the Southern States to ratify the amendment, offered to any 
State so ratifying it permission to assume its share of the 
direct tax levied in 1861, and gave ten years for the payment 
of that tax. 

The other bill disfranchised from holding office under the 
United States the following classes : 

1. The President and the Vice-president of the Confed- 
erate States and the heads of Departments. 

2. The agents of the Confederate States in foreign 
countries. 

3. The Heads of Departments of the United States, the 
officers of the Army and Navy, those educated at the military 
and naval academies, Judges of United States Courts, and 
members of either House of the Thirty-sixth Congress who 
gave aid and comfort to the rebellion. 

4. The officers of the Confederate States above the 
grade of Colonel in the Army, or Master in the Navy, and 
any one who, as the Governor of any of the said States, gave 
aid and comfort to the rebellion. 

5. Those who treated captured officers or soldiers or 
sailors of the United States otherwise than lawfully as pris- 
oners of war. 

These measures on their face indicated in the plainest 
terms the final determination of the party in power, as repre- 
sented by the joint Committee on Reconstruction, as to what 
terms were to be exacted of the Southern States as the con- 
ditions of restoration to a full participation in all political 
rights. In these States there were then fully organized State 
governments acknowledging the supremacy of the Constitu- 
tion and the laws of the United States and exercising all the 
powers of State governments, with all officials sworn to sup- 
port the Constitution. In all these States slavery had been 
abolished by amendments of their Constitutions, and this 
abolishment had also become national by the ratification of 
the Thirteenth Amendment. This amendment had become 






The Fourteenth Amendment 135 

operative by the action of the Legislatures of these States and 
had been so accepted by the Federal Congress. The State 
governments as thus organized had, therefore, been recog- 
nized as lawful governments, capable of performing the 
highest and most solemn acts of State sovereignty, and par- 
ticipating in the amendment of the Constitution of the United 
States itself. They passed laws upon all subjects of State 
jurisdiction, and exercised all the reserved rights that be- 
longed to any State of the Union. The Federal Govern- 
ment in turn recognized them fully as States. The Circuit 
and District Courts of the United States were regularly held 
in each of them, exercising the powers not of territorial 
United States Courts, but the powers that could only be ex- 
ercised by the Courts of the United States held in States. 
The only point on which there was a difference was that the 
two Houses, by a concurrent resolution, had agreed with each 
other that neither of them would admit Senators and Repre- 
sentatives from any of these States without the consent of 
the other. The resolution is as follows : 

"That in order to close agitation upon a question which 
seems likely to disturb the action of the Government, as well 
as to quiet the uncertainty which is agitating the minds of the 
people of the eleven States which have been declared to be 
lately in insurrection, no Senator or Representative shall be 
admitted into either branch of Congress from any of said 
.States, until Congress shall have declared such States en- 
titled to such representation." 

Article I, Section 3, of the Constitution reads : "The 
Senate of the United States shall be composed of two Sena- 
tors from each State. . . ." 

Article V of the Constitution declares : "No State with- 
out its consent shall be deprived of its equal suffrage in the 
Senate." 

It will be noted also that this amendment, — the Four- 
teenth, — was proposed for ratification to the governments 
then existing and as then organized in the States, whereby 
their competency to perform this great act of political sov- 
ereignty was again recognized. It will be noticed further 
that there is not a word in the bills that in the slightest degree 
implied that these State governments were illegal or provi- 
sional in any sense. They were not even called "insurrec- 



136 The Political History of Slavery in the United States 

tionary" States or "States in insurrection." They were desig- 
nated as "States lately in insurrection," — that is, States in 
which there had been, but no longer was, an insurrection. As 
to the powers of these States there is not a single word. The 
preamble recites that it is expedient that they should be re- 
stored to full participation in all political rights, not that 
they had lost or forfeited any rights whatever. The main 
condition of this restoration was the performance of an act 
that could only be performed by a State in the Union that 
possessed all the powers and faculties of any other State, — 
to wit, ratification of an amendment to the Constitution of 
the United States. 

It is needful now to set out some of the debate, — the ex- 
pressions of the most eminent Northern Republicans, — ex- 
planatory of the purpose of these bills. 

Mr. Stevens, referring to the proposed Constitutional 
amendment, said that it was not all that the committee (on 
reconstruction) desired. "It falls far short of my wishes," 
said he, "but it fulfills my hopes. I believe it is all that can 
be obtained in the present state of public opinion. Not only 
Congress but the several States are to be consulted." In 
this he referred to the Northern States, for he said : "I 
utterly repudiate and scorn the idea that any State not acting 
in the Union is to be counted in the question of ratification." l 

General N. P. Banks, speaking for the proposition and 
giving his reasons for supporting it, notwithstanding the 
failure to provide for Negro suffrage, said : 

"We have, in the nature of our Government, the right to 
do it [that is, impose Negro suffrage] ; but the public opinion 
of the country is such at this precise moment as to make it 
impossible we should do it." 2 

General Garfield said : "I regret .... that we have 
not found the situation of affairs in this country such, and 
the public virtue such, that we might come out on the plain, 
unanswerable proposition that every adult intelligent citizen 
of the United States, unconvicted of crime, shall enjoy the 
right of suffrage." 3 

He further said: "I believe that suffrage is the shield, 

1 Globe, 1st Session, 39th Congress, p. 2459. 

2 Ibid., p. 2532. 

3 Ibid., p, 2462. 



The Fourteenth Amendment 137 

the sword, the spear, and all the panoply that best befits a man 
for his own defense in the great social organism to which he 
belongs. And I profoundly regret that we have not been able 
to write and engrave it upon our institutions, and imbed it in 
the imperishable bulwarks of the Constitution." x 

These extracts taken from the speeches of the most emi- 
nent men who favored Negro suffrage sufficiently show that 
in their judgment neither Congress nor the general mass of 
the American people believed in the propriety of imposing 
Negro suffrage on the South, or that its imposition was one 
of the logical results of the war. 

Mr. Stevens did not believe that the ratification of the 
Southern States was necessary in the adoption of the amend- 
ment, it is true. But this opinion, it will be hereinafter 
shown, was not concurred in by Congress. Nor did he see 
proper to explain why they were required to perform an act 
for which they were not competent under the Constitution, — 
that is, should violate the Constitution itself, — in order to 
secure recognition from Congress of their undoubted consti- 
tutional rights of representation. As indicative of the feel- 
ing of bitter hostility and intense hatred entertained by the 
most conservative members of the Republican party, and of 
the design to humiliate the Southern people by requiring them 
to indorse measures intended to dishonor them, attention is 
called to the action of General Garfield. He was not con- 
tent with the disfranchisement of the Southern people until 
July 4, 1870, as provided for in the amendment as proposed 
by the committee. He proposed an amendment to this that 
would have the effect of disfranchising them forever. And, 
speaking in favor of the disfranchisement as expressed by 
the committee, he said : "Anything is just which excludes 
from privilege and power all those infamous men who par- 
ticipated in rebellion." 2 

On May 10, 1866, under the operation of the previous 
question, the resolution proposing the Fourteenth Amend- 
ment passed the House by a vote of one hundred and twenty- 
eight yeas to thirty-seven nays, nineteen members being 
absent. 3 

1 Globe, 1st Session, 39th Congress, p. 2462. 

2 Ibid., p. 2463. 

3 Ibid., p. 2545. 



138 The Political History of Slavery in the United States 

In the Senate it was found difficult to secure a two-thirds 
majority on any precise form for the amendment. There 
were various views presented. Mr. Sherman especially fa- 
vored a proposition to amend offered by Mr. Doolittle, — a 
proposition to the effect that representation should be accord- 
ing to the number of legal voters in each State. This was 
bitterly resisted by the Senators from the Eastern States on 
the ground that emigration from those States to the West 
had occasioned an undue proportion of males in the Western 
States, and a consequent lessening of their numbers in the 
East, and that, therefore, the proposition would give the West 
undue influence and power in the Government. 

Mr. Wilson, of Massachusetts, opposed the proposition 
with great vigor, saying he regarded it as a "proposition to 
strike from the basis of representation 2,100,000 unnatu- 
ralized foreigners in the old free States, for whom we were 
now entitled to seventeen Representatives in the other 
House." x He insisted that the proposition as advocated by 
Mr. Sherman weakened the East that much, and was simply 
a blow to strike that number of representatives from the loyal 
portion of the country for the benefit of the disloyal portion. 

It being impossible for the Republican Senators to agree, 
resort was had to caucus, in which the exact phraseology of 
the amendment was agreed to. In obedience to the decision 
of the caucus, Mr. Sherman voted against the proposition he 
had so strenuously advocated. In giving his reasons for do- 
ing so, he said the vote he would cast would be "in opposition 
to what is my deliberate judgment on the question now pend- 
ing. The more I think upon this question the more I am 
convinced that the true basis of representation in the present 
condition of affairs is the number of male citizens who under 
the laws of the States are allowed to vote. ... I feel bound 
by the action of my political friends to vote against this 
amendment .... offered by the Senator from Wisconsin 
[Mr. Doolittle], though in my judgment it would do more 
than any other to heal the difficulties by which we are sur- 
rounded." 2 

Mr. Stewart, also, did not approve the plan as agreed on 
in caucus. 

1 Globe, 1st Session, 39th Congress, pp. 2986-7. 

2 Ibid., p. 2986. 



The Fourteenth Amendment 139 

It is thus seen that in this most important measure, — the 
amendment of the Constitution of the United States, by which 
the destiny, the happiness, and the welfare of the Southern 
States were most deeply affected, and about which they were 
not consulted, and on which they were not allowed to be 
heard even, — the independent judgment of Senators was con- 
trolled and their action dictated by a party caucus. 

The whole scheme was opposed in the most able speeches. 

Mr. Hendricks said : 

"And now, sir, in this the most unsafe period of our 
history, when the passions excited by the war are yet fierce; 
when sectional controversies run high, and party strife is 
raging; when eleven States are absent from this chamber, 
and other sections, seizing the opportunity, seek to aggrandize 
their power, and to fasten upon the country a partial and 
unequal policy ; when the lust for power and gain carries men 
beyond the restraints of justice and right; at such a time I 
cannot remain wholly silent when I see the hand of the par- 
tisan and the self-constituted reformer laid upon the sacred 
work of the fathers. In such a case, to speak is a man's duty, 
though none may heed." x 

This eminent statesman, finding this grave matter set- 
tled in the caucus of the majority, and knowing that all 
argument against the decree of the caucus would be vain, 
though determined to do his duty, was compelled to confess 
the difficulty of speaking "when," to use his own language, 
"one knows in advance that no argument, however just and 
forcible, and no appeal, however patriotic, can influence a 
single vote; that the authority and law of a political party is 
over every Senator of the majority, and that it remains now 
only to register the decree of the secret caucus." 2 

Mr. Hendricks, speaking further of the reports of the 
Reconstruction Committee, said that its first report, made 
some months before, had been defeated. "Its second report is 
now upon our desks. It passed the House, but when it came 
under discussion in the Senate, and had to bear the test of 
the independent judgment of Senators, it was found wanting, 
and its defeat became almost certain. A second defeat to a 
party programme could not be borne; its effect upon the fall 

1 Globe, i st Session, 39th Congress, p. 2938, June 4, 1866. 
8 Ibid. 



140 The Political History of Slavery in the United States 

elections would be disastrous. A caucus was called, and we 
witnessed the astounding spectacle of the withdrawal, for the 
time, of a great legislative measure, touching the Constitution 
itself, from the Senate, that it might be decided in the secret 
councils of a party. For three days the Senate chamber was 
silent, but the discussions were transferred to another room 
in the Capitol, with closed doors and darkened windows, 
where party leaders might safely contend for a political and 
party policy." x 

Mr. Cowan, of Pennsylvania, spoke with great force and 
eloquence against the proposed amendment. He said : "If 
a State has the right to form its own government, and that is 
the republican form, by what right can one of the other 
States, or two of them, or ten of them, or three-fourths of 
them, if you please, venture to introduce into the State a 
power from without in order to control its distribution of 
political power? If the effect of any such extra action upon 
a State would be to deprive it of a portion of its weight in 
the Union, that is a violation of the original compact; it is a 
violation of the very instrument upon which the Union was 
formed ; it is putting the torch to the very fabric you wish to 
preserve; it is putting a mine under the very building you 
wish to secure." 2 

He further said : "What is worse about it all, those 
States which are to suffer most and the States in which it is 
to operate most harshly are not heard; they are not allowed 
to come upon the floor and argue their case." 3 

Speaking of Negro suffrage that was to be brought about 
by a reduction of the representation of the Southern States 
in case Negroes were excluded from voting, he asked : 

"Do you pretend that you are improving the suffrage, 
do you pretend that you are making the institutions of the 
country more secure when you insist upon this? Who does 
so in the face of the civilized world? Are you bringing into 
the councils of the country more wisdom, more independence, 
more virtue ? Nobody pretends it. Do you allow Negroes to 
vote yourselves? . . . 

"Degrade your franchise, put it down in the hands of men 

1 Globe, 1st Session, 39th Congress, p. 2938. 
8 Ibid., p. 2987. 
8 Ibid., p. 2988. 






The Fourteenth Amendment 14 1 

who have no intelligence, no virtue, and, what is worst of 
all, no independence; put it into the hands of men who have 
nothing to hope from it except in so far as they can use it 
for corrupt purposes, and shall we be safer then, I ask? Do 
you suppose that the people of the States in which there are 
Negroes will send more intelligent, more learned, more vir- 
tuous, and more independent Senators and Representatives 
here, if you make this change, than they would without ?" 1 

Mr. Wilson interjected : "They will send more loyal 
men. a 

Again Mr. Cowan said : "If we are to amend the Consti- 
tution, we must amend it in such a way as to be satisfac- 
tory to the people everywhere, not merely the people of 
Massachusetts, or the people of Michigan, but to the people 
of Georgia and the people of Louisiana, to the people of all 
the States. Does any man want an amendment to the Con- 
stitution forced through here under circumstances of this 
kind, against a people who are unable to resist, against peo- 
ple whom you will not hear, and in the face of a numerical 
majority in the country against you?" 3 

Notwithstanding all arguments to the contrary, the Four- 
teenth Amendment passed the Senate, after having been 
amended so as to be as it now is, and was then passed in the 
House and filed in the Secretary of State's office on June 16, 
1866. No serious efforts were made to pass the bills that 
accompanied it, and that were the complements of the Four- 
teenth Amendment in the then scheme of reconstruction. 

The Southern States had not been heard in Congress on 
this amendment. They had not been allowed to participate 
in framing it as a proposition to be submitted to all the 
States, though, as was afterward assumed, they, as the final 
actors under the Constitution, were required not to exercise 
their judgment and ratify or reject as they might deem best, 
but were forced to ratify it. There was a command from a 
portion of the States to another portion that the latter should 
ratify this amendment, or be subject to the consequences, 
whatever they might be. In effect, Congress not only exer- 
cised the power granted by the Constitution to formulate an 

1 Globe, 1st Session, 39th Congress, p. 2989. 

2 Ibid., p. 2989. 
* Ibid., p. 2989. 



142 The Political History of Slavery in the United States 

amendment to the Constitution, and propose it to the constit- 
uent bodies, the States, but, as to the Southern States, dic- 
tated that it should be accepted. 

It must not be forgotten that this proposition was sub- 
mitted to the Southern State governments as they then ex- 
isted. Who was to exercise the ratifying power in a State 
was, in the Southern, as it was in the Northern, left to each 
State for its sole determination. It was not even hinted that 
Congress would reorganize any State government, introduce 
new electors, exclude electors qualified by the Constitution 
and laws, and to this new body submit the proposition of 
amendment. As Congress had failed to pass the accompany- 
ing bills before noticed, there remained no promise or engage- 
ment, as was contained in them, that if the Southern States 
would ratify the proposed amendment they would be allowed 
representation in Congress. 

The Southern States declined to ratify, as might have 
been expected. The proposition to amend had been made 
purposely offensive to the Southern people, as it required them 
"to put," in the language of Mr. Trumbull, "some sort of 
stigma, some sort of odium, upon the leaders of the re- 
bellion." 

The Southern people had been engaged in a war that had 
taxed their endurance and patriotism to the last degree. 
They had continued the struggle as long as there was hope, 
and even beyond the time when calm and unimpassioned 
men saw there was no hope of success. They had staked all 
on the result and had lost. Their fields had been laid waste, 
their homes had been pillaged and burned, and many of their 
bravest and best men had sealed their devotion to the cause 
by yielding up their lives. There was scarcely a family in all 
the South that had not lost in the struggle at least one of 
its members. In fact, all was lost save honor. 

The Southern people had entered into the struggle with 
the profound conviction that separation and independence 
were necessary to their safety. When, therefore, they had 
failed, it was not a matter of reproach, but to their honor 
that they did not purchase immunity from threatened wrong 
by sacrificing a portion of their brethren upon an altar of 
infamy. 

If the Fourteenth Amendment had contained nothing but 



The Fourteenth Amendment 143 

the guarantee for personal rights, as stated in the first sec- 
tion, and the provision for the national debt and for the re- 
pudiation of the Confederate debt, and the yielding of com- 
pensation for emancipated slaves, and the reduction of repre- 
sentation of Southern States in Congress, it is highly prob- 
able that the Southern people would have accepted it as the 
final terms of reconstruction, if it had been so proposed. 

The loss of political power that was threatened unless 
Negro suffrage was adopted would not of itself have proved 
a serious objection. Looking at events through the light 
that has been thrown on them by subsequent history, it ap- 
pears to the unprejudiced thinker that no great harm could 
have come to the South from the loss of political power. The 
equipoise of power once thought so important by both sec- 
tions had been forever destroyed, and with it a great part 
of the necessity for such equipoise had disappeared. In 
fact, to the cool and far-seeing statesman who was consider- 
ing the means of safety for his section it would have ap- 
peared better, — since the equipoise was destroyed and with 
it was lost the power to protect Southern interests by the 
forms of the Constitution, — that a large part of this power 
should itself disappear. If it remained very large it would 
be the occasion of exciting passions and prejudices in the 
North by the charge on the South of attempting to rule the 
country. If it were small, it would cease 'to be a menace to 
Northern interests, and when local Southern interests were 
involved it could have been made efficient for self-protection 
by temporary alliances with parties in the North. As it was, 
the power remaining to the South was large enough to excite 
prejudice and opposition in the North, and not large enough 
for self -protection. 

But, however we consider the matter, it appears now that 
the South was without blame in rejecting the Fourteenth 
Amendment under the circumstances then existing. 

It must be remembered that the Fourteenth Amendment 
contained many distinct and independent propositions, each 
of which had no relation to the others. This was the first 
instance in our history in which such an amendment had 
been submitted as an entirety. It resulted that no oppor- 
tunity was given to accept a part and reject a part. An 
effort was made, but failed, to submit each section of the 



144 The Political History of Slavery in the United States 

Fourteenth Amendment as a separate article, whereby a part 
could be ratified and a part rejected ; so that when the South- 
ern States came to act on these various propositions con- 
tained in the Fourteenth Amendment they were obliged to 
ratify or reject it as a whole. There is but one excuse for 
such a submission and that is that the whole constituted a 
scheme for reconstruction, and the North would demand no 
more and accept no less. But the failure to pass that bill 
accompanying- the Fourteenth Amendment, which contained 
the engagement that restoration to full political rights should 
come from this proposed amendment, left the South without 
any assurance that restoration would come from ratification. 

It will be seen hereafter that there was dispute and dis- 
agreement among the leaders of the Republican party as to 
whether there was an implied engagement even that the 
South should be restored on ratification of the Fourteenth 
Amendment. 

The Southern States, having under these circumstances 
failed to ratify the Fourteenth Amendment, the situation was 
such as to permit a renewal of the matter in Congress. 

The Congressional elections in the fall of 1866 had been 
favorable to the Republican party. When the second session 
of the Thirty-ninth Congress met in December of that year 
the dominant party took a new and advanced position. On 
the second day of the session Mr. Broomall, of Pennsyl- 
vania, offered a resolution directing the Committee on Terri- 
tories in the House to "inquire into the expediency" of re- 
porting territorial bills for the Southern States, except Ten- 
nessee, and to give all adult males, native born and natural- 
ized, who were not participants in the rebellion, equal and full 
political rights. This resolution was adopted by yeas, 107; 
nays, 37. 1 

Up to that date the scheme had been to give the South- 
ern States the choice between the acceptance of Negro suf- 
frage within their respective limits and the loss of political 
power. Now it appeared by a vote of more than three to 
one that this choice was to be withdrawn and Negro suffrage 
would be imposed, and a large number of the whites dis- 
franchised. Up to that date Congress had agreed that the 
attempted secession had been ineffectual to withdraw the 

1 Globe, 2d Session, 39th Congress, p. 11. 



The Fourteenth Amendment 145 

Southern States from the Union, and that the State govern- 
ments reorganized in 1865 were competent and legal gov- 
ernments. Now under this resolution these governments 
were not only adjudged to be illegal, but the States them- 
selves were held not to be States but mere territories, over 
which Congress might exercise full jurisdiction and establish 
such local governments as they might deem proper. 

On the next day Mr. Sumner offered in the Senate a 
series of resolutions of similar import, — resolutions declar- 
ing explicitly that the rebel States were not entitled to a voice 
in the adoption of amendments to the Constitution. 

On January 3, 1866, Mr. Stevens offered a substitute to 
the Reconstruction Bill, which had accompanied the Four- 
teenth Amendment, as has been before explained. 

This substitute took the full advanced position of the 
most radical advocates of the theory of the conquest and sub- 
jugation of the South. The change in the programme was 
significantly marked by the preamble to the substitute. In the 
preamble to the former bill, the Southern States were de- 
nominated as "States lately in rebellion," and it was declared 
that it was "expedient that these States should at the earliest 
day consistent with the future peace and safety of the Union 
be restored to full participation in all political rights." The 
preamble of the substitute declared that the eleven States that 
lately formed the Government called the Confederate States 
of America had forfeited all their rights under the Constitu- 
tion and could be reinstated only through the action of Con- 
gress. The bill provided that these eleven States, except 
Tennessee, might form valid State governments as provided 
therein. It declared that the de facto governments in these 
States were illegal, but were to be recognized as valid for mu- 
nicipal purposes until duly altered. 

The bill then provided for the election of delegates under 
national authority to form a Constitution in each State, and 
declared all male citizens over twenty-one years old, resi- 
dent in the State twelve months and in the district ten days, 
competent electors and delegates, and that "citizens" included 
all natives or naturalized persons, except Indians not taxed. 

By section six it was provided that all who had held office, 
civil or military, under the Confederate Government, or who 
had sworn allegiance to the same, had renounced their allegi- 



146 The Political History of Slavery in the United States 

ance to the United States and had forfeited their citizenship 
until five years after they had filed their intention or desire to 
be reinvested with citizenship. It allowed, however, such Con- 
federates to vote as would swear that on and after March 4, 
1864, they had desired the success of the Union arms and had 
not since then aided the rebellion. 

By section seven it was required that the Constitutions so 
framed should not deny the civil and political equality of 
any citizen, and that all laws should be impartial, without 
regard to language, race, or former condition; and if this 
should be ever afterward altered, the State should lose its 
right to representation in Congress. The bill did not require 
ratification of the Fourteenth Amendment by the Southern 
States. 1 

Mr. Stevens, in presenting the substitute, deprecated the 
leniency with which the Southern people had been treated by 
the President, and arraigned that officer for opposition to 
the ratification of the Fourteenth Amendment, charging him 
with desiring that the Southern States should have an in- 
crease in their representation without increasing the number 
of their voters, whereby one rebel in South Carolina was to 
be equal to three freemen in New York and Pennsylvania. 
He declared that a majority in Congress desired that treason 
should be made odious, "not by bloody executions, but by 
other adequate punishments." 

He denied that there was any understanding, "expressed or 
implied," that upon the adoption of the Fourteenth Amendment 
by any Southern State such State, before said amendment 
should become a part of the Constitution, should be admitted 
to representation. He denied that any such State could ever 
ratify the amendment; "to allow it would be yielding the 
whole question and admitting the unimpaired right of the 
seceded States." 

Expressly confining his argument to Negro suffrage in 
the Southern States, he said : 

"Have not loyal blacks quite as good a right to choose 
rulers and make laws as rebel whites? . . . Another good 
reason is, it would insure the ascendency of the Union [Re- 
publican] party. 'Do you avow the party purpose?' exclaims 
some horror-stricken demagogue. I do. For I believe, on 

1 Globe, 2d Session, 39th Congress, p. 250. 



The Fourteenth Amendment 147 

my conscience, that on the continued ascendency of that party 
depends the safety of this great nation. If impartial suf- 
frage is excluded in the rebel States then every one of them 
is sure to send a solid rebel representative delegation to Con- 
gress; and cast a solid rebel electoral vote. They, with their 
kindred copperheads of the North, would always elect the 
President and control Congress. ... I am for Negro suf- 
frage in every rebel State. If it be just, it should not be 
denied; if it be necessary, it should be adopted; if it be a 
punishment to traitors, they deserve it." 1 

In the same speech Mr. Stevens showed the disposition 
of his party toward the Supreme Court of the United States. 
Referring to the decision of that court in the case "Ex parte 
Milligan," then recently made, he said that decision made it 
necessary to act without delay. "That decision, although in 
terms not perhaps as infamous as the Dred Scott decision, is 
yet far more dangerous in its operation upon the lives and 
liberties of the loyal men of this country. That decision has 
taken away every protection in every one of these rebel 
States from every loyal man, black or white, who resides 
there. That decision has unsheathed the dagger of the assas- 
sin, and places the knife of the rebel at the throat of every 
man who dares proclaim himself to be now, or to have been 
heretofore, a loyal Union man." 2 

The decision here denounced merely held unconstitutional 
the trial by military commission of persons in civil life in 
States never in rebellion. 

Mr. Bingham, of Ohio, took issue with Mr. Stevens as 
to the understanding about the Fourteenth Amendment's be- 
ing the basis of reconstruction. He said that members of 
the Committee on Reconstruction were committed to that 
view, and proceeding, he declared "the people of the United 
States so understood and accepted it. There are gentlemen 
here, not a few I undertake to say, who owe their re-election 
to the Fortieth Congress to the fact that the Union State 
conventions in the States which they represent upon this floor 
declared their acceptance of this constitutional amendment, 
in manner and form as it now stands, as a condition of fu- 
ture restoration." 

1 Globe, 2d Session, 39th Congress, p. 252. 
3 Ibid., p. 251. 



148 The Political History of Slavery in the United States 

And he declared further that Mr. Stevens' substitute con- 
flicted with the Fourteenth Amendment. "It is a clear, palpa- 
ble departure from the intent and letter of your constitutional 
amendment." 1 

Other members also took issue with Mr. Stevens, as will 
be hereafter seen. 

The clear ■ and palpable departure from the Fourteenth 
Amendment, as stated by Mr. Bingham, is found in the fact 
that the amendment was submitted to the then existing State 
governments, and the bill accompanying it only required that 
it should be ratified by such governments, and its ratification 
would have had no other effect on suffrage than to diminish 
the representation of a State to the extent that it should ex- 
clude male adults from voting. The bill, however, of Mr. 
Stevens submitted the amendment to State governments or- 
ganized on Negro suffrage and required the Constitutions so 
formed to provide for such suffrage forever. And it will 
be seen that, though this particular bill of Mr. Stevens did 
not pass, the substantial feature of it as to suffrage was 
finally adopted. 

On February 6, 1867, Mr. Stevens, having abandoned the 
bill just noticed, reported from the Reconstruction Com- 
mittee another bill on this subject. 

This bill assumed military control of the Southern States 
at the end of two years from the close of the war. It pro- 
vided for dividing the Southern States, except Tennessee, 
into five military districts, each to be under the command of 
an officer to be assigned by the General of the Army. It sus- 
pended the writ of habeas corpus, and gave the District Com- 
mander power to protect all persons in their right of person 
and property, to suppress disorder and violence, and to try 
criminals either by the civil tribunals or by military com- 
mission. 

The bill contained no provision whatever for reconstruc- 
tion. It simply organized military rule in the Southern 
States. 2 

Various propositions were made to amend it, and among 
them one by Mr. Blaine, which is of sufficient importance to 
require notice, as well as some of the debates on it. 

1 Globe, 2d Session, 39th Congress, p. 500. 

2 Ibid., p. 1037. 



The Fourteenth Amendment 149 

This amendment was to the effect that when the Four- 
teenth Amendment should have become a part of the Consti- 
tution by the ratification of three-fourths of the States then 
represented in Congress, "and when any one of the late so- 
called Confederate States shall have given its assent to the 
same and conformed its Constitution and laws thereto in all 
respects ; and when it shall have provided by its Constitution 
that the elective franchise shall be enjoyed equally and im- 
partially by all male citizens of the United States, twenty- 
one years old and upward, without regard to race, color, or 
previous condition of servitude, except such as may be dis- 
franchised for participating in the late rebellion; and when 
said Constitution shall have been "duly ratified by the voters 
of the State, and approved by Congress," then such State shall 
be "declared entitled to representation In Congress" and the 
military government established by the bill shall cease. 1 

Mr. Blaine argued in support of his amendment that it 
did nothing more for the other nine Southern States than 
was done by the bill in relation to Louisiana that day passed 
by the House; that the bill proposed no civil government for 
the other States, and if the amendment was adopted, some- 
thing would have been achieved "as a basis of reconstruction, 
and we bring Congress up to the declaration of making equal 
suffrage" the basis of reconstruction. 

He insisted specially on the fact that the amendment de- 
clared the doctrine that "three-fourths of the States now 
represented in Congress have the power to adopt the consti- 
tutional amendment, and does not even by implication give 
the Southern States ground to believe that their assent or 
ratification is necessary to its becoming a part of the Consti- 
tution. It implies that their assent to it is a qualification for 
themselves; merely an evidence both moral and legal of good 
faith and loyalty on their part." 2 

Mr. Raymond, of New York, insisted that the late elec- 
tion in the Northern States turned upon the conceded fact 
that the Fourteenth Amendment alone was to be the basis of 
reconstruction without any additional requirement as to suf- 
frage as a condition of admission of the Southern States to 
representation. 

1 Congressional Globe, 2d Session, 39th Congress, p. 1182. 

2 Ibid. 



150 The Political History of Slavery in the United States 

Mr. Blaine rejoined that, with the single exception of 
New York, he did not recall a single convention that made 
the declaration that no more should be required than the 
Fourteenth Amendment. 

Mr. Raymond said that while no such specific declaration 
was made, it was true that Congress had adopted no other 
basis than the amendment, yet it was fair to presume that 
such was the understanding, and "especially as the issue was 
made distinctly between the policy of the President and the 
policy of Congress." 

Mr. Garfield, correcting an alleged misrepresentation of 
his speech on a former occasion, said : "I did say the other 
day, and I say now, that if the amendment [the Fourteenth] 
proposed at the last session of Congress had been ratified by 
all the States lately in rebellion in the same way that Ten- 
nessee ratified it, and if those States had done all the other 
things that Tennessee did, I should have felt myself morally 
bound, though it fell very far short of full justice and of my 
own views of good statesmanship, and I believe the thirty- 
ninth Congress would have been morally bound to have ad- 
mitted every one of the rebel States on the same terms." * 
Yet Mr. Stevens and Mr. Blaine said no offer was made. 

Mr. Garfield said in the speech made on the 8th of Febru- 
ary to which he referred : "The constitutional amendment did 
not come up to the full height of the great occasion; it did 
not meet all that I desired in the way of guarantees to lib- 
erty; but if the rebel States had adopted it as Tennessee did, 
I should have felt bound to let them in on the same terms 
prescribed for Tennessee. I have also been in favor of wait- 
ing, to give them full time to deliberate and act. They have 
deliberated; they have acted. The last one of the sinful ten 
has at last, with contempt and scorn, flung back into our 
teeth the magnanimous offer of a generous nation. It is now 
our turn to act." 2 

Mr. Garfield said in his speech on the 8th of February: 
"I am aware that this is a severe and stringent measure. I 
do not hesitate to say that I give my assent to its main fea- 
tures with many misgivings." 3 

1 Congressional Globe, 2d Session, 39th Congress, p. 1183. 

2 Ibid., p. 1 104. 
*Ibid. 



The Fourteenth Amendment 15* 

Nevertheless, the bill of Mr. Stevens, without material 
amendment, was passed. The amendment of Mr. Blaine and 
other amendments were lost. 

On the final passage in the House, the yeas were 109, the 
nays 55, absentees 26. x 

The bill as it passed the House was in no sense a recon- 
struction measure, but a pure and simple military govern- 
ment for the South, without a provision or engagement that 
it should cease, and without proposing any terms to the South 
on compliance with which the States could be admitted to 
representation in Congress. It will be seen that the excuse 
for this measure as given by Mr. Garfield was that the South 
had rejected the Fourteenth Amendment. The temper of the 
House, as shown by the debate, was of the harshest; denun- 
ciation of the South was the staple of most of the speeches 
made. 

Mr. Garfield claimed that it was "the right of the victori- 
ous Government to indict, try, convict, and hang every rebel 
traitor in the South for their bloody conspiracy against the 
Republic." 2 That "they had forfeited every right of citi- 
zenship by becoming traitors and public enemies." 3 That 
"the time has come when we must lay the heavy hand of mili- 
tary authority upon these rebel communities." 4 

Mr. Stevens said : "For two years they [the Southern 
States] have been in a state of anarchy; for two years the 
loyal people of those ten States have endured all the horrors 
of the worst anarchy of any country : persecution, exile, 
murder, have been the order of the day within all these Ter- 
ritories so far as loyal men were concerned, whether white 
or black, and more especially if they happened to be black." 5 

Mr. Brandagee, of Connecticut, declared the old rebel- 
lion had not been suppressed. "It still lives; it dominates in 
every one of these reconstructed States; it has made loyalty 
odious and treason respectable by forcing traitors into the 
gubernatorial chairs of ten of the eleven of these revolted 
communities; in ten out of eleven it has sent traitors who 

1 Congressional Globe, 2d Session, 39th Congress, p. 121 5. 

2 Ibid., p. 1 103. 

3 Ibid., p. 1 104. 
*Ibid. 

5 Ibid., p. 1076. 



152 The Political History of Slavery in the United States 

audaciously demand seats upon this floor; it has clothed trea- 
son with the ermine on the bench of the ten revolted States ; 
it has filled their halls of local legislation ; it has armed trea- 
son with the sword of the law in ten of the States; it holds 
to-day the pen of the press, that weapon mightier than the 
sword ; it desecrates the word of the Most High from all their 
pulpits ; it hisses out curses against the Union from the sibi- 
lant tongues of its women and the prattling lips of its babes, 
. . . and it scouts and throws back in your teeth the mild and 
merciful terms of reconstruction offered in the constitutional 
amendments of last session." x 

There were not, however, wanting those who pleaded for 
generosity and magnanimity toward the Southern people. 
To their suggestions Mr. Stevens said : "Generosity and 
benevolence are the noblest qualities of our nature, but when 
you squander them upon vagabonds and thieves you do that 
which can command no respect from any quarter. ... I de- 
sire to say what perhaps had better not be said, that gentle- 
men who are thus, by direction or indirection, defending the 
cause or palliating the conduct of these rebel traitors are mak- 
ing for themselves no good record with posterity. They, sir, 
who while preaching this doctrine are hugging and caress- 
ing those whose hands are red and whose garments are drip- 
ping in the blood of our and "their murdered kindred, are 
covering themselves with indelible stains, which all the waters 
of the Nile cannot wash out." 2 

This bill was also urged as a party measure, as the former 
bill had been. Mr. Garfield, on this subject, said : "But, sir, 
the hand of God has been visible in this work, leading us by 
degrees out of the blindness of our prejudices to see that the 
fortunes of the Republic and the safety of the party of lib- 
erty are inseparably bound up with the rights of the black 
man. At last our party must see that if it would preserve its 
political life, or if we would maintain the safety of the Re- 
public, we must do justice to the humblest man in the nation, 
whether white or black. I thank God that to-day we have 
struck the rock; we have planted our feet upon the truth. 
Streams of light will gleam out from the luminous truth em- 
bodied in the legislation of this day. This is the ne plus ultra 

1 Congressional Globe, 2d Session, 39th Congress, pp. 1076-7. 

2 Ibid., p. 1214. 



The Fourteenth Amendment 153 

of reconstruction, and I hope we shall have the courage to 
go before our people everywhere with 'This or nothing' for 
our motto." 1 

"This or nothing" refers to the bill for reconstruction in 
Louisiana. This bill passed the House of Representatives 
February 12, 1867, by yeas 113, nays 47. 2 
Its substantial provisions are : 

1. That a provisional Government be established in 
Louisiana with a Governor and Council of nine to be ap- 
pointed by the President with the consent of the Senate. 
The Council had legislative power. These officers were irre- 
movable except with the consent of the Senate. Laws passed 
by the Council were subject to be annulled by Congress. 

2. The Governor and the Council and all other officers 
including members of the constitutional convention and mem- 
bers of the Legislature were to be entirely free from any 
participation in the rebellion, and were to take the iron-clad 
test oath prescribed by the act of Congress of July 2, 1862. 

3. A legislature was to be elected on the first Tuesday 
in June, 1867. 

4. The electors were to be male citizens of the United 
States, without distinction of color, and they were also to 
take said iron-clad oath with the following exception : 

5. That persons who served as privates only in the 
Southern army might be electors if they would swear and 
prove before a United States Court by persons of undoubted 
loyalty that since March 4, 1864, they were really in favor 
of the Union, and had not since that time voluntarily done 
any act in favor of the rebellion. If acts were done in aid 
of the rebellion, then it was to be presumed that they were 
voluntary until proof was made to the contrary. 

6. A convention was to be held under rules prescribed 
by the Secretary of War. 

7. An army officer, not lower in rank than Brigadier 
General, was to be appointed military commander of the 
State, and he was to arrest and hold violators of the law 
until they were prosecuted by the civil authorities. 

8. The militia of the State, to consist only of qualified 
electors, were to organize and be equipped as soon as prac- 

1 Congressional Globe, 26. Session, 39th Congress, p. 1184. 

2 Ibid., p. 1 175. 



154 The Political History of Slavery in the United States 

ticable, and to be under the command of the military com- 
mander of the State. 

9. The Constitution was to contain provisions for re- 
pudiating the rebel debt, and that no pension, compensation, 
gift, or gratuity shall be bestowed upon or paid by the State 
to any person by reason of anything done or suffered in aid 
of the rebellion, and these powers were to be irreversible and 
unchangeable by amendment. 

10. The Constitution was also to provide against any 
distinction in the rights of men on account of race or color. 

11. The Constitution was to be approved by a majority 
of the electors. 

12. Until the State was admitted to representation in 
Congress, a delegate to Congress was to be elected having 
the power and right of a territorial delegate. 1 

This was the rock of truth on which Mr. Garfield said 
his party had placed its feet. 

1 Congressional Globe, 2d Session, 39th Congress, pp. 1 173-4. 



CHAPTER III 

THE BILL A MEASURE OF PUNISHMENT AND RUIN 

As a further evidence of the temper and intent of this 
bill, it is proper to quote again what Mr. Garfield said : "If 
the Democratic party, with the President at its head, had, 
on any day since July last, advised the people of the South 
to accept the constitutional amendment and come in as Ten- 
nessee did, it would have been done. I have information 
from a source entirely reliable that a little more than a month 
ago [this was spoken on February 12, 1867] Alabama was 
on the eve of accepting the proposed amendment to the Con- 
stitution when a telegram from Washington dissuaded her 
from doing so and led her to rush upon her own ruin by re- 
jecting it." 1 

It has been seen that many members made the rejection 
of the Fourteenth Amendment by the Southern States the 
ground or the pretext for their support of this military bill. 
How little justice there was in this is manifest from a con- 
sideration of the circumstances. It was never offered to the 
Southern States up to that date as a condition of reconstruc- 
tion. Congress had never prior to its rejection passed any 
act or resolution that indicated that the acceptance of this 
amendment by the Southern States was required, or even 
desired, as a step in the process of reconstruction. The bill 
which the Committee on Reconstruction had reported with 
the amendment, and which did contain a provision that ac- 
ceptance of that amendment was a condition of reconstruc- 
tion, was never passed, nor was any serious attempt made to 
pass it. It was suffered to die without action. This of itself 
was evidence to the Southern States that its enforced accept- 
ance by them was not demanded. The amendment was, 
therefore, submitted to them, as it was to every other State, 
for their free and voluntary action, as was proper under the 

1 Congressional Globe, 2d Session, 39th Congress, p. 1183. 

155 



156 The Political History of Slavery in the United States 

Constitution of the United States. In the exercise of their 
judgment, they regarded it as some of the Northern States 
did. As has been shown, it contained provisions that were 
intended to be odious and even insulting, and they were not 
allowed the privilege of voting separately on its various pro- 
visions, ratifying a part and rejecting a part. 

Again it was announced by many of the leaders of the 
dominant party, and among them Mr. Stevens and Mr. 
Blaine, that they had no power to ratify. 

After their rejection of the amendment it was, as has 
been seen, a matter of serious dispute among the leading 
members of the dominant party whether there was an impli- 
cation even from all the circumstances that it had been sub- 
mitted to them as a condition of reconstruction. Such men 
as Mr. Stevens and Mr. Blaine insisted that no such submis- 
sion had been made. Mr. Blaine himself, in explaining his 
amendment to the military bill, expressly stated that even 
by it there was no submission to them as parties capable of 
ratifying it. His amendment expressly affirmed that the con- 
stitutional amendment would become a part of the Constitu- 
tion upon its ratification by three-fourths of the States then 
represented in Congress. That amendment, carefully omit- 
ting the constitutional word "ratification" applied by it to 
the other States, provided only for the assent of the Southern 
States and not ratification by them. The majority of the 
Republican speakers in the House agreed that the Southern 
States had no constitutional power to ratify the amendment. 
So that the submission of the amendment to the Southern 
States was not, if these views were correct, a constitutional 
act ; nor would their action on it have the slightest constitu- 
tional validity. In short, the Southern States were com- 
plained of for not doing an act not authorized by the Consti- 
tution, in the judgment of those complaining, and not even 
required by Congress, and their refusal to do it was treated, 
as described by Mr. Garfield, as rushing upon their own ruin. 

This complaint may justly be made of the action of the 
majority in Congress that when they discovered, as was de- 
veloped in the debate on this bill, that there was a difference 
among their most distinguished members on the question 
whether or not such submission had been really made to the 
Southern States as a condition of reconstruction, it should 



The Bill a Measure of Punishment and Ruin 157 

have led them, if they so desired it, to make such submission 
in plain terms. The Southern States were not represented 
in either House. They could not know more of the will of 
Congress, in respect to their destinies, than Congress should 
choose to express. Congress made no expression on this sub- 
ject until after the States had acted. The matter rested in 
implication, about which the most distinguished of their 
number differed. The Southern States were suffered "to 
rush upon their own ruin," as Mr. Garfield expressed it, 
without the slightest notice that their action would be so 
treated by those who had the power to inflict the "ruin." 
Congress did afterward make the expression, but the very 
act of expression was accompanied by the infliction of the 
penalty of disobedience, — their ruin. The disobedience was 
the failure to obey a law not in force when the act was com- 
mitted. 



CHAPTER IV 

THE MILITARY BILL IN THE SENATE 

When the bill went to the Senate, Williams, of Oregon, 
proposed an amendment framed on the basis of Mr. Blaine's 
amendment, which had been offered in the House, but was 
lost. There was, however, this remarkable difference be- 
tween the two, that Williams' amendment omitted wholly the 
declaration in Mr. Blaine's that the constitutional amendment 
might lawfully be ratified by three-fourths of the States then 
represented in Congress. 1 

Mr. Williams on the next day abandoned the proposition 
on the ground that it would endanger, if not absolutely de- 
feat, the bill. For the same reason he said he would oppose 
all amendments to the bill; and being in charge of the bill, 
he gave notice that he would press for a final vote on its pas- 
sage before the next succeeding night. 

Reverdy Johnson then offered the amendment of Mr. 
Williams, saying that, though he should vote against the bill, 
the amendment would make it less objectionable. 2 

Mr. Stewart expressed his regret that Mr. Williams had 
changed his mind in reference to the amendment, saying: 
"The military bill without that, it seems to me, is an ac- 
knowledgment that after two years of discussion and earnest 
thought we are unable to reconstruct, and are compelled to 
turn the matter over to the military." 3 

Mr. Howard objected to the amendment, among other 
grounds, on this, that it was incompatible with the bill. He 
insisted that the Southern States were in law conquered ter- 
ritory and subject to the absolute control of Congress, and on 
this theory the bill was framed. The amendment, however, 
recognized State powers and State rights, the power in the 

1 Congressional Globe, 2d Session, 39th Congress, p. 1361. 

3 Ibid. 

•Ibid. 

158 



The Military Bill in the Senate 159 

Southern States to act "in the most solemn proceeding in 
which a State can act, the ratification or rejection of the 
amendment of the Constitution," and the power to "amend 
their own Constitutions." He said: "If these States are 
thus invested with State authority, if they can legislate as 
States, if they can amend their Constitutions as States, if 
they can change their legislation so as to conform, in the lan- 
guage of this amendment, to the amendment to the Constitu- 
tion suggested at the last session, then they can adopt any 
other kind of State legislation which they may see fit; then 
they are, indeed, sovereign States, and, in the language of 
Mr. Seward, in his Cooper Institute speech of the 226. of 
February, 1866, they are as fully and completely invested 
with State authority as the Legislature of the State of New 
York, then in session." 1 

Mr. Stewart argued strenuously for the amendment, stat- 
ing that there should be some end fixed by the bill to the 
military government ; that it would be unsafe and unwise to 
leave this to future legislation. 

He said : "I would not trust myself with absolute power; 
I will not trust another; and I want to say in this very bill, 
'Thus far will I go and no farther.' When the bill is passed 
I may love this power too well to surrender it. 

"I say, then, place the limit in this bill ; say to these people : 
Whenever you comply with the demands of the loyal masses 
of the North, whenever you comply with the dictates of hu- 
manity, whenever you make your institutions correspond with 
the principles of the Declaration of Independence, we will 
then recognize you as free communities, and remove from 
you the iron hand which the necessity of the case has made 
us place upon you, unfortunate rebels. We will hold that 
hand upon you until you learn to do good and cease to do 
evil, till you stop your New Orleans riots, till you cease to 
persecute Union men, till you acknowledge the rights of all 
men; and when that is done we will release it at once, and 
we will not hold it then an hour afterwards." 2 

1 Congressional Globe, 2d Session, 39th Congress, p. 1365. 
1 Ibid., p. 1367. 



160 The Political History of Slavery in the United States 



IMPARTIAL SUFFRAGE IN FORCE 

Mr. Hendricks moved so as to require of the States only 
that the suffrage should be "impartial" as between blacks and 
whites, and not "universal," so that the ignorant and unquali- 
fied persons of both races might be excluded. 1 

Mr. Doolittle, in support of this, said he had reason to 
believe that if only "impartial" suffrage were required of the 
people of the South, they would accept it; but if universal 
suffrage were required, they would reject it. In support of 
this view, he spoke of the difference in intelligence between 
the Negroes in the North and in the South. He said that 
only the more enterprising Negroes had come North, — those 
educated in the hotels, on steamboats and in families, who 
have mingled with freemen and have been freemen them- 
selves for a long time, have families, support themselves, and 
are educated in the habits and thoughts and feelings and re- 
sponsibilities of freemen; that it was unaccountable to him 
that any statesman should insist that the great mass of the 
Negroes in the South who had just been released from bond- 
age should hold the elective franchise and determine the in- 
terests of the States and the nation. 2 

This view was not disputed. The answer was, not that 
they were competent, but that if impartial suffrage were 
adopted, it was plain and palpable that nearly all the colored 
persons would be excluded, and that the only opportunity of 
these men was to require universal suffrage on the basis of 
manhood. 

Mr. Doolittle urged upon Senators of the majority to 
weigh seriously the question of impartial suffrage, "because 
upon it may depend whether the people of the South will 
accept your constitutional amendment and accept the propo- 
sition which is necessary to get rid of military domination." 

Mr. Wilson said : "Make them." 3 

Mr. Doolittle continued : "My friend says, 'Make them 
accept it.' ... I ask the Senator from Massachusetts if that 
is the true language of a statesman, to say to a people who, 
like ourselves, have been educated in the largest liberty, a 

1 Congressional Globe, 2d Session, 39th Congress, p. 1374. 

2 Ibid., p. 1375. 
8 Ibid. 



The Military Bill in the Senate 161 

people in whose veins the Anglo-Saxon blood is flowing, 
which for a thousand years has been fighting against des- 
potism in every form, 'You must accept this position at the 
point of the bayonet, or forever live with the bayonet at your 
throats'? Is that the way to make peace? Disfranchise the 
whites and put the rule in these States into the hands of the 
blacks, and hold the whites in subjection at the point of the 
bayonet; is that what you call making peace? Is that or- 
ganizing a civil Government which is to educate the people 
up to a Republican form of government?" x 

Mr. Wilson said that the Fourteenth Amendment was 
often undervalued. He believed its adoption as a part of the 
Constitution of the United States would settle all these ques- 
tions in ninety days. "They have refused it. Now, sir, I 
would require them to adopt it, to adopt manhood suffrage, 
and to give equality of rights and privileges to all citizens 
without distinction of color. We have the power to do it; 
we have the right to do it on account of their rebellion." 2 

The proposition of impartial suffrage was rejected. 

The amendment of Mr. Williams, withdrawn by him and 
then offered by Mr. Johnson, was opposed by Republican 
Senators on other grounds relating to the sovereignty of 
the States. Mr. Howard contended that, while he did not 
doubt the power of Congress to pass any law in reference to 
the conquered provinces, as he deemed the Southern States, 
he yet shrank from the proposition to require them to adopt 
Negro suffrage. He argued that such a proposition was a 
complete departure from the action of the Committee on 
Reconstruction, so far as the right of suffrage is concerned. 
That committee, after having considered the subject referred 
to them for some eight months, made their report to the 
Senate; indeed, they made several reports, but in not one 
of their reports did they propose to interfere by the legisla- 
tion of Congress, or in the form of an amendment to the Con- 
stitution, with the right of suffrage within the States. They 
have carefully abstained from all attempts to interfere with 
that very sacred right. They thought it not worth while to 
intermeddle, and I think they acted wisely. The Senate it- 
self, by repeated votes, has sanctioned that course. The 

1 Congressional Globe, 2d Session, 39th Congress, p. 1375. 

2 Ibid., p. 1375. 



1 62 The Political History of Slavery in the United States 

whole subject has been discussed with great fullness and 
clearness before the people during the last Congressional 
elections, and the people have very generally understood that 
it is not the purpose of Congress to intermeddle with the right 
of the State to regulate the suffrage of its citizens. "The 
amendment now before us proposes a different policy. It 
proposes in direct terms that we shall interfere in regulating 
the suffrage of citizens in the rebel States, a thing from 
which the committee industriously and cautiously abstained." * 

He then read the Fourteenth Amendment, in which it will 
be noted there was no attempt to confer suffrage on Negroes 
otherwise than by requiring that the Constitution of the 
Southern States when formed should provide for that, thus 
leaving the whole matter of reconstruction to the white 
voters. In other words, as the amendment read, it was a 
proposition to the white people of the South alone to en- 
graft Negro suffrage on their new Constitutions as a condi- 
tion of representation in Congress. The Negro was not con- 
sidered in this proposition. He was not to act, but only to 
be the subject of the prescribed action of the whites. 

Mr. Howard objected also that the proposition just named 
was coercion. He said that the "provision contemplates a 
sort of coercion to be exercised through an act of Congress 
upon the State to constrain it, in order to get into Congress, 
to admit the black population to vote." 2 He disliked to 
attempt such an interference, though he admitted the power 
of Congress to do it. 

Mr. Howard disliked the amendment because it proposed 
terms to rebels, saying : "I make no proffer ; they know their 
duty well. They knew it five years ago. . . . They have 
waged a bloody and wasteful war upon my friends, my neigh- 
bors, my countrymen, and my Government, and persevered 
in it until the whole land was covered with mourning and 
tears and blood. I would be the last man, after having 
crushed them and trampled them under my feet, to make 
gratuitous propositions of reconciliation to them. Let them 
come up and do their duty like men and citizens of the United 
States. . . ."« 

1 Congressional Globe, 2d Session, 39th Congress, p. 1381. 

*Ibid. 

•Ibid. 



The Military Bill in the Senate 163 

Mr. Stewart asked him to state what he believed to be 
their duty. 

Mr. Howard: "The first duty of every community that 
has a Government is to punish crime and to protect its 
friends. . . . The great and paramount duty of the rebel 
State Governments, their first and leading duty, is to punish 
crime and thereby to protect the peaceful and the innocent." * 
Mr. Howard mentioned no other duty. 

FORCED TO RATIFY A CONSTITUTIONAL AMENDMENT 

Mr. Hendricks agreed with Mr. Howard that the bill was 
coercion on the Southern States to compel them to ratify 
an amendment to the Constitution. On this point he said : 
"Any amendment of this nature [the Williams Amendment 
offered by Mr. Johnson] is substantially a proposition to the 
people of the South that if they will agree to the constitu- 
tional amendment [the Fourteenth] proposed at the last ses- 
sion of Congress, and to other propositions, it is very well ; 
but this is submitted to them with the bayonet presented at 
the same time, and an amendment to the Constitution of the 
United States, which the fathers intended should be entirely 
at the will and pleasure of the States, is to be secured by the 
military power of the country." 2 

And, speaking of the bill and of the Louisiana bill, he 
said : "I know of no language which I can command that 
will describe my hostility to both bills." The Louisiana bill 
is "more insidious, and if it were parliamentary to say so, 
I would add, more cowardly in its attack on liberty. The 
bill which is now before us proposes in a bold way, outright 
and straightforward, by physical power to govern the people 
of the South; the other bill, by a political machinery, pro- 
poses to strip them of free government, and, under the pre- 
tense of guaranteeing a Republican form of government, to 
take away from the people the power to decide upon their 
own institutions." s 

Mr. Hendricks referred to the preamble of the bill, which 
alleged "that the pretended governments" in the Southern 

1 Congressional Globe, 2d Session, 39th Congress, p. 1381. 
*Ibid. } p. 1385. 
» Ibid. 



164 The Political History of Slavery in the United States 

States "were set up without the authority of Congress and 
without the sanction of the people;" these governments "af- 
ford no adequate protection for life or property, but coun- 
tenance and encourage lawlessness and crime," and that "it is 
necessary that peace and good order should be enforced in 
said so-called States until loyal and Republican State govern- 
ments can be legally established" therein. 1 

He insisted that the majority had too often been commit- 
ted to the proposition that "these States did not cease to 
exist because of the ordinances of secession" now to turn 
their backs on it; that Congress had too often recognized 
them as States since those ordinances were adopted to allow 
the majority now to deny their existence as States. He 
asked when did they cease to be States and come to be pre- 
tended governments? He desired to know when it was and 
how it was this change took place; did the rebellion disrobe 
them as States? "We have said the contrary too often to 
aver that now." "Did they cease to be States by the act of 
secession, by the act of rebellion, by the act of war, or was 
it because the rebellion itself was defeated?" 2 

The preamble of the law, it will be remembered, is the 
formal statement made in the most solemn form of the reason 
or occasion of the enactment of the law. Calling attention to 
the preamble, it will be seen that, though all these proceedings 
took place after the rejection of the Fourteenth Amendment 
by the Southern States, nothing is said in it about that rejec- 
tion. If it be averred, as is sometimes done, that the rejec- 
tion of that amendment was the reason of the subsequent re- 
construction legislation of Congress, including the Fifteenth 
Amendment, the answer is found in the solemn statements 
made in the preamble to this and other bills passed on the 
subject. This preamble, as it is above set out, received the 
sanction of the House of Representatives, and it was sub- 
stantially adopted in all respects in the bill that finally passed 
both Houses. 3 This solemn statement of the reason for pass- 
ing the bill not only does not sustain the charge that the re- 
jection of the Fourteenth Amendment was the reason for 
the subsequent reconstruction measures, but by an irresisti- 

1 Congressional Globe, 26. Session, 39th Congress, p. 1037. 

2 Ibid., p. 1385. 

8 XIV U. S. Statutes at Large, p. 428. 



The Military Bill in the Senate 165 

ble implication avers the contrary. It avers that the State 
Governments are illegal or pretended Governments, set up 
without the consent of the people of the several States. If 
so, these Governments had neither the legal nor the moral 
right to ratify an amendment to the Constitution; not the 
legal right, because they themselves were illegal and pretended 
Governments ; not the moral right, because such action would 
be a usurpation and assumption to speak for a people who 
had never consented to them. 

Mr. Hendricks, in commenting on the preamble, stated 
that it contained propositions of fact "upon which the ma- 
jority now claim the right to establish such a Government as 
this bill proposes." He then went on to show that the allega- 
tion, in the preamble, of lawlessness in the South and the com- 
plaint that the State Governments furnished no adequate pro- 
tection to life and property were untrue in point of fact; and 
he made some statements as to lawlessness in the Northern 
States and their failure to punish adequately the most atro- 
cious crimes. 



CHAPTER V 

DISHONOR TO SOUTH IN THE FOURTEENTH AMENDMENT 

Mr. Hendricks, proceeding, said he did not "know that it 
is worth while now to say a word in behalf of the people 
of the South. I am not going to apologize for their con- 
duct. But, sir, they have submitted to the military authority 
of the Government most reluctantly upon their part; their 
arms have been laid down or taken from them; they have in 
every way in which they could do so addressed themselves to 
this Government for pardon and for restoration in all their 
relations to the Government, and for nearly two years they 
have been refused ; they have agreed to the constitutional 
amendment abolishing slavery; they have modified their own 
Constitution so as to abolish slavery ; they have repudiated the 
Southern debt contracted during the war; they have done all 
that they understood was required of them, except to adopt 
the last constitutional amendment ; they have not adopted that, 
and I do not know that they ever will. Upon that subject I 
have no opinion to give. Some Senators on the other side 
know very well that there was a provision introduced into 
that constitutional amendment that made it almost impossible 
for the people of the South to adopt it. I speak of that pro- 
vision which especially degraded the military officers of the 
South and cut them off from all positions in the Federal and 
State Governments." 1 

A PLEA FOR HARMONY AND RESTORATION 

Mr. Hendricks then made an eloquent appeal for restora- 
tion, saying: "It is the highest duty of the citizen and of the 
statesman now, by every effort possible, to restore harmony 
and peaceful relations." If Senators desired that Representa- 
tives from the Southern States should take a test oath, let it 
1 Congressional Globe, 2d Session, 39th Congress, p. 1389. 

166 ' 



Dishonor to South in the Fourteenth Amendment 167 

be so, but let them be represented. "Let the wheels of this 
Government move on according to the Constitution." He 
further said : "As I read this bill and contemplate its won- 
derful provisions, it is almost impossible for me to believe 
that Senators by this policy desire restoration, ... or har- 
mony." He did not believe "that the safest way to establish 
liberty is first to establish despotism." ' 

An amendment to the Williams-Johnson amendment was 
proposed and carried, requiring that the electors for delegates 
to the Constitutional Convention in any State should include 
Negroes. This was done after one o'clock a. m. on the 15th 
of February, but the amendment thus amended was still un- 
acted on. 

STATUS OF THE SOUTHERN STATES 

It will be noted that the Williams-Johnson amendment 
up to the present had made no expression as to the number of 
States necessary to ratify the Fourteenth Amendment. The 
provision on that subject was only when "said amendment 
shall become a part of the Constitution of the United States." 

Mr. Sumner proposed to remove the ambiguity which he 
said "leaves open to question whether these sham governments 
may not, by some hocus-pocus or other, be enlisted in the num- 
ber of States to constitute the three-fourths required." His 
amendment was to the effect that three-fourths of the States 
then participating in the Government were sufficient to ratify 
the Fourteenth Amendment. 

Mr. Johnson suggested that whatever might be the declara- 
tion of the Senate on that point, still it must finally be decided 
by the courts. 

Mr. Saulsbury stated that a consequence of the amendment 
of Mr. Sumner was that "a majority of the representatives of 
the States" in the Senate "may get together and close the door 
against the representatives of the other States," and then, 
through the "assent of three-fourths of the States so repre- 
sented," excluding the remainder, would ratify the amend- 
ment, though they might not be a majority of the States of the 
Union. "In the commencement of the late civil war Congress 
by resolution recognized every Southern State as a State of 
this Union, although those States were not represented in Con- 

1 Congressional Globe, 2d Session, 39th Congress, p. 1389. 



1 68 The Political History of Slavery in the United States 

gress. You have passed more than a hundred bills .... 
during the civil war .... in which and by which you recog- 
nized those States as States in the Union ; you levied taxes on 
them as States .... you appointed officers [revenue] in those 
States as States, naming them as States. Even Mr. Lincoln 
.... by his proclamations, and by almost every official act 
having reference to those States, recognized them as States. 
You have appointed District Judges of the Courts of the 
United States in those States as District Judges for those 
States. And when the Senator from Massachusetts .... 
offered a resolution declaring in substance that the States 
might commit political suicide and be no longer States in the 
Union, it received .... no support from your party except 
the individual vote of that Senator." 

He impeached the consistency of Republican Senators and 
declared : "It was only when you became successful in the 
conflict that you proclaimed this doctrine which the Southern 
States first proclaimed, that they had a right to withdraw 
from the Union. You now practically admit the very doctrine 
for which they contended, that they had the right, if they 
could only vindicate that right by the power of the sword, to 
withdraw from the Union. You said that they had no power 
to withdraw from the Union. . . . and yet after the result 
of the conflict of arms has been in your favor, you turn 
round and proclaim, not only to them, but to the whole world, 
that the very doctrine you preached was not true, and that they 
might take themselves out of the Union, and that you might 
hold them as subject provinces, and that you might parcel out 
their domain to military satraps, and subject the people of 
those States to the mere arbitrary will of a majority of the 
Federal Congress." 1 

Mr. Doolittle spoke against the proposition of Mr. Sumner 
with great force. He said : "The very fundamental idea of 
our institutions rests upon self-government, the idea that the 
people have a voice in their governments, a voice in making 
their fundamental laws. The idea of the Senator from Mas- 
sachusetts strikes at the very foundation of everything like 
Republican government. To say that ten million people, be- 
cause to-day they happen not to have representatives admitted 
into Congress, — not because they have not sent them here, but 

1 Congressional Globe, 2d Session, 39th Congress, p. 1394. 



Dishonor to South in the Fourteenth Amendment 169 

because Congress refuses to let them in, — are to be bound by 
a fundamental constitutional law binding upon them, which 
has been imposed on them by two-thirds or three-fourths of 
the Legislatures of other States, who happened to be repre- 
sented, is a proposition which .... cannot bear discussion. 

"Sir, it is fundamental, vital; it goes to the question of 
existence of the union of the States; it assumes that these 
are not States of the Union, having any right to a voice in the 
fundamental law of the land." * 

Mr. Doolittle expressed his astonishment at the length to 
which Mr. Sumner was willing to go. He called attention to 
the act passed by Congress on the 10th of May, 1866, con- 
senting to the transfer of two counties of Virginia to West 
Virginia. By that act Congress recognized not only the State 
of Virginia, but the Legislature of Virginia, "and the validity 
of the act of the Legislature of Virginia consenting to this 
transfer of territory." 

"By every act of legislation during this whole war Con- 
gress has always recognized these States as States in this 
Union. There is no act upon the statute-books which declares 
anything else but that they are States in this Union." 2 

Mr. Hendricks asked Mr. Sumner at what date and by 
what act one of the Southern States ceased to be one of the 
United States. Mr. Sumner replied : "The act of secession 
followed by war." 3 

Mr. Hendricks then asked, "If this be so, how is it that 
the Congress of the United States could recognize the act of 
her Legislature [Tennessee] in ratifying" the Thirteenth 
Amendment "as is recited in the preamble to the resolution 
admitting the State of Tennessee to representation in Con- 
gress?" Mr. Sumner said he did not vote for but against 
that act. 

After some further discussion the proposition of Mr. 
Sumner was voted down, receiving only seven votes, — How- 
ard, Lane, Pomeroy, Sprague, Sumner, Wade, and Yates. The 
nays were twenty-five, and absentees twenty. 4 

Mr. Henderson then offered the Louisiana bill and sub- 

1 Congressional Globe, 26. Session, 39th Congress, p. 1395. 

2 Ibid. 

3 Ibid., p. 1396. 

4 Ibid., p. 1397. J 



170 The Political History of Slavery in the United States 

mitted an amendment so as to include all the Southern in- 
surrectionary States. 1 The Senate then adjourned at three 
o'clock a. m. of Saturday, February 16. 

On the same day the Senate met at twelve o'clock m., and 
continued in session until twenty-two minutes past six o'clock 
a. m. of Sunday the 17th, at which hour the bill was finally 
passed. 2 

It ought to be remembered that the minority complained 
of these long sessions on these two legislative days, the 15th 
and the 16th, and made several motions to adjourn, assuring 
the majority there was no disposition to delay unduly the pas- 
sage of the bill. Mr. Hendricks specially complained of being 
unwell, and unable, therefore, to discuss it. 

Mr. Buckalew, on Friday, the 15th, after stating that the 
bill had come to the Senate within the last twenty-four hours, 
said : "I found myself able to give it only a hurried reading 
before it was called up for debate. Is it not a little remark- 
able that a bill in which the social and political condition of 
eight or ten million American people is involved should be 
driven through one branch of Congress under the previous 
question without opportunity for any extended debate, and 
should then be driven through the Senate under the disci- 
pline of an organization confined to a portion only of the mem- 
bers of our body, with some twenty-four or forty-eight hours 
only of consideration, amid the pressure of other duties that 
crowd upon us, and when our own overtasked physical powers 
scarcely enable us to give the subject even that attention which 
is necessary to vote upon it intelligently, much less to examine 
and discuss it properly?" 3 

Mr. Hendricks said: "If the Senator [Mr. Saulsbury] 
will give way, I will make a motion that the Senate adjourn; 
but before I make the motion I wish to suggest that this is 
no ordinary legislation in which we are concerned. It is, in 
my judgment, the gravest legislation that has ever occupied 
Congress. It is claimed by its friends to be the work of re- 
construction of our government ; it is believed by its enemies 
to be the work of destruction. Whoever of these may be 
right, this is true, that the subject is worthy of consideration. 

1 Congressional Globe, 2d Session, 39th Congress, pp. 1397-8. 

2 Ibid., p. 1469. 
» Ibid., p. 1382. 



Dishonor to South in the Fourteenth Amendment 1 71 

It is now nearly two o'clock at night. The majority have oc- 
cupied almost as much time as they say they desire, with the 
exception of the distinguished Senator from Massachusetts, 
as he intends to 'tear this amendment shred from shred and 
make it a logical absurdity.' " x 

Mr. Sumner: "That it is, right on its face." 

On the 1 6th the measure came up early. Mr. Doolittle 
made a great speech in opposition to the whole measure. It is 
too long and too important to be abstracted. It should be 
read as a whole. 2 

Mr. Davis, 3 of Kentucky, and Mr. Saulsbury 4 spoke with 
great force and eloquence against the bill. 

Then Mr. Sherman offered an amendment as a substitute 
for the whole bill. This was offered late in the morning, Sun- 
day, the 17th. It was offered immediately after the rejection 
of the Williams-Johnson amendment. This amendment, with 
an addition made by the Senate and the sixth section and the 
proviso to the fifth section which were added by the House, 
is the law as it finally passed. 

The preamble to the bill averred that "No legal State gov- 
ernments or adequate protection for life or property now 
exists in the rebel States" [naming them] and that "it is 
necessary that peace and good order should be enforced in 
said States until loyal and Republican State governments can 
be legally established." 5 

It will be noted that this bill, as offered by Mr. Sherman 
and passed, established a military government in the Southern 
States, and by the fifth section enacted in substance the amend- 
ment offered by Mr. Johnson as it had been amended in the 
Senate. It provided for Negro suffrage in the forming of a 
convention to frame a new Constitution and also prescribed 
that the Constitution so framed should recognize it, but it left 
the calling of the convention to the State Governments as they 
then existed. 

On the final passage of the bill the vote was yeas 29, nays 
10. The title of the bill was amended on motion of Mr. Sher- 

1 Congressional Globe, 2d Session, 39th Congress, p. 1394. 

2 Ibid., pp. 1440-46. 

3 Appendix to same, pp. 124-129. 

4 Congressional Globe, 2d Session, 39th Congress, pp. 1448-58. 
6 Ibid., p. 1459. 



172 The Political History of Slavery in the United States 

man by striking out "insurrectionary" before "States," and 
inserting "rebel." * 

On Monday, the 18th of February, as soon as the House 
met, the bill as amended in the Senate was reported to the 
House. 

The Senate substitute was opposed by Mr. Stevens, 
Mr. Boutwell, Mr. Banks, and others, but, nevertheless, under 
the operation of the previous question, it was passed on the 
20th, with the addition of section six and the proviso to sec- 
tion five as it now stands in the law, yeas 126, nays 46. 2 

The proviso of the fifth section, which was added by the 
House, prohibited all persons disfranchised from holding office 
by the Fourteenth Amendment, from being delegates to the 
Constitutional Convention, and from voting for delegates to 
that convention. 

The sixth section, added by the House, declared that until 
the said States were admitted to representation in Congress 
any civil government there should be deemed provisional only 
and subject to the paramount authority of the United States 
to abolish or modify, control or supersede, and that in all 
elections under said provisional governments all persons en- 
titled to vote under the fifth section, and none others, should 
vote, and that no person should be eligible to office under the 
provisional governments who was disqualified under the Four- 
teenth Amendment. 3 

When these amendments were reported to the Senate for 
its concurrence there was considerable debate thereon, and 
there was a diversity of opinion among the Republican Sena- 
tors as to concurrence therein. 

Mr. Sherman especially opposed with great force both 
concurrence and the referring of the difference to a conference 
committee. He desired first an adherence by the Senate to its 
amendments, with the view of allowing the House the oppor- 
tunity of reconsidering its amendments. Replying to Mr. 
Sumner, he said : "Although in many Southern States the 
Negroes are in the majority, and if they have the intelligence, 
the vigor, and the firmness of the white men, they can vote 
down the white men ; the Senator says he is not satisfied with 

1 Congressional Globe, Second Session, 39th Congress, p. 1469. 

2 Ibid., p. 1400. 
8 Ibid., p. 1399. 



Dishonor to South in the Fourteenth Amendment 1 73 

that. Now, what is asked? What was asked in the House 
of Representatives? That we shall disfranchise the white 
population and leave only the Negroes and the few loyal 
white people there are in the Southern States to vote? If that 
is the proposition, let us meet it boldly and manfully. Sir, the 
people of Ohio I know do not demand such a proposition. All 
they ask is that the Negro shall be protected in all his natural 
rights, and, as the highest means of protection, that he shall 
be secured the ballot. And, sir, no proposition can ever pass 
this Congress, and no bill can ever be sanctioned by the Ameri- 
can people which will disfranchise the white population of 
the Southern States, with very few exceptions, and place the 
power of ten States in the hands of ignorant emancipated 
freedmen. We want neither black nor white oligarchies. Our 
people are willing to protect the freedmen, to secure them with 
military power, to give them money for temporary relief, to 
arm them with the ballot, to do everything that is necessary 
for their protection ; but we are not willing to establish in this 
country ten States in which all the white people are disfran- 
chised, and only the black can vote. When I say all, I mean 
practically all, because we know very well that there are com- 
paratively few white men in the Southern States who have 
not been complicated more or less in the rebellion ; and when 
you attempt to draw a line between white men, when you say 
that one class of white men may vote and another shall be 
excluded, you will find yourself involved in perpetual diffi- 
culty. It is impossible to draw any such line. . . . * 

"We build reconstruction upon the broadest humanity and 
invite all men to take part in the work. So far as voting is 
concerned we proclaim universal amnesty in exchange for uni- 
versal suffrage ; and yet the Senator is not satisfied. What 
more did he ask a year ago? Nothing. If we exclude from 
voting the rebels of the South, who compose nearly all the 
former voting population, what becomes of the Republican 
doctrine that all governments must be founded on the consent 
of the governed? I invoke constitutional liberty against such 
a proposition. Beware, sir, lest in guarding against rebels you 
destroy the foundation of republican institutions. . . . Our 
path has been toward enfranchisement and liberty. Let us not 
turn backward in our course, but after providing all necessary 

1 Congressional Globe, Second Session, 39th Congress, p. 1563. 



174 The Political History of Slavery in the United States 

safeguards for white and black, let us reconstruct society in 
the rebel States upon the broad basis of universal suffrage." 1 

Referring to the disfranchisement as to holding office, as 
provided for in the Fourteenth Amendment, and stating his 
belief that it would not extend to more than six thousand, per- 
haps ten thousand, he asked : "Is not that enough? Is it not 
enough that they are humiliated, conquered, their pride broken, 
their property lost, hundreds and thousands of their bravest 
and best buried under their soil, their institutions gone, they 
themselves deprived of the right to hold office, and placed in 
political power on the same footing with their former slaves ? 
Is not that enough? I say it is. And a generous people will 
not demand more." 2 

Yet they did demand more and Mr. Sherman concurred 
in the demand. 

Mr. Sumner declared that he was willing to accept the 
amendment of the House as to suffrage, but he wished it 
understood that he would at all times insist on some more 
practical and direct way of applying the true principle of re- 
construction. 3 

Mr. Sherman finally concluded to accept the House amend- 
ment, though it excluded, as he thought, unnecessarily a few 
people from voting, but this exclusion, he said, was "only at 
the first election for delegates to the convention, after that 
they can vote. ... I was willing to see a few who had been 
most conspicuous in the work of rebellion excluded from hold- 
ing office, but none from voting." 4 

Mr. Wilson, of Massachusetts, said : "I vote for this great 
measure as a whole heartily, but I should vote for it more 
joyously if no human being on earth was disfranchised by 
it." 5 

Reverdy Johnson wished that the state of affairs was dif- 
ferent. "If I had my own way I would at once receive them 
[the Southern States] in this Chamber, with a heart full of 
conviction that they would be true to their duty to the country, 
and that they would promote its permanent interest. But I 

1 Congressional Globe, Second Session, 39th Congress, p. 1564. 

2 Ibid. 

'Ibid., p. 1626. 
4 Ibid. 

'Ibid. 



Dishonor to South in the Fourteenth Amendment 175 

have not my way. I am obliged, therefore, to acquiesce in 
the decision of the majority of Congress, however erroneous 
or unjust I may believe that decision to be. ... I shall give 
it my vote, not because I approve of it in the abstract or in 
the particular, but because I think I see in it a mode of rescu- 
ing the country from the perilous predicament in which it is 
now placed." x 

Mr. Hendricks : "I think experience has shown us that 
the greatest difficulty in the way of the adoption of the con- 
stitutional amendment in the Southern States was that pro- 
vision which required the great body of the people there to 
do an act, as they supposed, of dishonor." He referred to 
the clause disfranchising certain Southerners from office. He 
said : "When the people of the Southern States came to con- 
sider that amendment, the great body of them thought, 'If we 
adopt this, it will be to relieve ourselves from political dis- 
ability and to secure to ourselves political power, at the same 
time sacrificing in these respects the men that we encouraged 
in the rebellion,' and they felt that it was a matter of honor 
that they should not agree to it." 2 

A proposition was made to amend the disfranchising clause 
by excluding from it all those who had been pardoned by the 
President. This was voted down. Finally the House amend- 
ment was agreed to by a vote of thirty-five to seven, absent 
ten. 3 

The President vetoed the bill, and it became a law over 
his veto on March 2, 1867. 

Thus was enacted into the form of law the first scheme of 
reconstruction under Congressional authority, nearly two years 
after the war ended. In the interim there had been recon- 
struction, under the plan of Mr. Lincoln, adopted and carried 
out by Mr. Johnson. Under this the Constitutions of the 
several Southern States had been amended so as to conform 
to the amended Constitution of the United States. No com- 
plaint was made that the Southern State governments were 
not republican in form and consonant to the provisions of the 
Constitution of the United States. Governors, legislatures, 
judicial and ministerial officers, had been duly elected and ap- 

1 Congressional Globe, Second Session, 39th Congress, p. 1627. 
"Ibid., p. 1627. 
'Ibid., p. 1645. 



176 The Political History of Slavery in the United States 

pointed, and the State Governments were performing all the 
functions of State Governments under the Constitution. They 
had elected Senators and Representatives to Congress accord- 
ing to the forms of law. They were subject to and were pay- 
ing taxes. The Federal Courts, which, by the laws of their 
organization, could only be held and exercise jurisdiction in 
States, were regularly held and judgments were rendered that 
were revisable and were actually revised in the Supreme Court 
of the United States; and, in short, all the relations existing 
between States and the Federal Government existed between 
each of them and the United States. The Congress had by a 
concurrent resolution denied to them only the right of repre- 
sentation in both Houses of Congress. Congress had sub- 
mitted to them, equally as to the other States, amendments to 
the Constitution; they had ratified the Thirteenth Amend- 
ment, and that ratification had been accepted as valid. They 
had rejected the Fourteenth Amendment, and that rejection 
had not only been accepted as valid, but had been made the 
ground of accusation against them of a want of loyalty to the 
Union and the pretext for punitory legislation against them. 
In this submission Congress had, by a logical necessity, ad- 
mitted that they were competent and loyal Governments. The 
scheme had been to enforce Negro suffrage on the Southern 
States alone, through a diminution of their representation 
in Congress, if it were not accepted by them. Yet they were 
left free to accept this diminution or avoid it by adopting 
Negro suffrage. No formal offer had been made to them, if 
they would ratify the Fourteenth Amendment, that they 
should be admitted to representation in Congress; but after 
they rejected that amendment it was claimed that the offer 
had been made, and their rejection of it was denounced 
and made the pretext for subjecting them to military rule and 
to an enforcement of Negro suffrage by direct Congressional 
action. If the Southern State Governments were in fact il- 
legal, as averred in this bill, then it is evident that they had 
no power to act on these amendments to the Constitution. 
Being illegal, they were in fact mere usurpations, and were 
without authority to bind the people by participating in an act 
changing the fundamental law of the Union. To have done 
so would have been in fact a violation of the Constitution of 
the United States, which equally condemned usurpations and 



Dishonor to South in the Fourteenth Amendment 177 

an amendment of the Constitution, except by the valid and 
legal action of the States. Nor was their situation improved 
by the excuse afterward presented by Mr. Blaine, that ratifi- 
cation by them of the Fourteenth Amendment was sought, not 
as a valid act of ratification, but as testing the disposition of 
the people toward the Union, and as a qualification of the peo- 
ple for association with the other States in the Union. For 
if the State Legislatures were illegal, they represented no one, 
their acts bound no one, their action could qualify no one. 
More than this, there is no authority in the Constitution for 
submitting amendments to the Constitution to any ratifying 
power but to States, nor for any other purpose than for legal 
and valid ratification. There is no such thing known in the 
Constitution as submission of amendments to that instru- 
ment to States or to people in territorial divisions known as 
States, for the purpose of qualifying them to be States, or of 
testing the disposition of the people as to qualifications for 
Statehood. Such submission was, therefore, on that theory 
a violation of the Constitution, and action under it would 
have been equally a violation of that instrument. To recon- 
struct on that basis was to require the Southern States to com- 
mit a violation of the Constitution as a qualification for State- 
hood under it. The claim too that the Southern States were 
not States in the Union, and, therefore, not competent to act 
as States on the constitutional amendments, though avowed 
by many, was not recognized by the Senate, which in the main 
framed the bill. The proposition of Mr. Sumner to amend 
the bill so as to declare that three-fourths of the other States 
were competent to amend the Constitution was voted down 
in the Senate by a large majority, only seven members voting 
for it. The same proposition was contained in the Blaine 
amendment, which was lost in the House. Even those who 
professed belief in that position had no confidence in it. Mr. 
Kirkwood candidly avowed his fears that the Supreme Court 
would not sustain such a position. 1 

Such fear was well founded, for in the next year the case 
of Texas against White, 7 Wallace, 700, was decided, in 
which it was held that Texas was, and had been since her ad- 
mission, a State in the Union as a State. That the Union was 
composed of "indestructible States." If so, then Texas and 

1 Congressional Globe, Second Session, 39th Congress, p. 1393. 



178 The Political History of Slavery in the United States 

the other Southern States must be counted in enumerating 
three-fourths of the States, — the number necessary to ratify 
an amendment to the Constitution. 

There is nothing stranger than the action of the human 
brain when it is devoted to reconciling contradictory actions 
and theories in accordance with the attainment of a prede- 
termined end. The majority in Congress had determined that 
the Southern States should not be admitted to representation 
in that body, except upon certain conditions that were in- 
tended to secure a predetermined end. That end was the en- 
franchisement of the Negroes in those States. This was an 
abandonment of the scheme as developed in the Fourteenth 
Amendment. That scheme looked to enfranchisement in those 
States by the action of the State Governments as then or- 
ganized, or on failure of such enfranchisement, then to a 
diminution of the political power of those States based on that 
population. A choice was given between the two. Now it was 
determined that there should be no choice, but Negro suffrage 
was to be imposed through military rule. Mr. Sherman and 
other leaders of the majority were for universal suffrage and 
universal amnesty. They were for the exercise of this power 
by all male adults whether black or white, but with this dif- 
ference, they were inflexible in the determination that all 
blacks should vote, but more pliant as to demands for ex- 
clusion of a portion of the whites. The bill as it passed the 
Senate committed suffrage to all, leaving, however, to the il- 
legal State Governments power to disfranchise "for participa- 
tion in the rebellion or for felony at common law." 

So far as Congress was concerned, suffrage was to be uni- 
versal, with a concession, however, to these illegal State Gov- 
ernments of the acknowledged rights of the State Govern- 
ments to make the named exclusions. 

The House, however, inserted the proviso to the fifth sec- 
tion, by which a large number of whites were excluded from 
suffrage for participation in rebellion, and both white and 
black felons were made eligible. Mr. Sherman and others 
of the majority were opposed to this proviso. Mr. Sumner 
wanted a more extended disfranchisement of whites who had 
engaged in the rebellion. In opposing this, Mr. Sherman, as 
has been seen, recurred to first principles. He declared that 
the exclusion of all the rebels would violate the maxim that 



Dishonor to South in the Fourteenth Amendment 179 

"all Governments must be founded on the consent of the gov- 
erned." He "invoked constitutional liberty against such a doc- 
trine," and warned the Senate to "beware, lest in guarding 
against rebels, you destroy the foundations of Republican in- 
stitutions." Yet whilst proclaiming this doctrine, and admit- 
ting its application to rebels, he, with his associates, was 
without the slightest compunction enforcing in this very bill a 
Government without the consent of the governed, and enacting 
as a condition of release from military rule that these States 
should ratify, against their known wishes, an article amending 
the Constitution, — an article that made the most important 
change in their fundamental law. 

The question of reconstruction seemed now settled. To 
have this settlement, — to have a distinct pledge, as is embraced 
in the fifth section of the Act, that on compliance with these 
terms military rule should cease and the Southern States be 
restored to the Union, — Reverdy Johnson, as we have seen, 
though opposed to the whole scheme, had voted for it. 

The situation, then, was this: the Thirteenth Amend- 
ment abolishing slavery had become a part of the Constitu- 
tion. The Fourteenth Amendment had been rejected by the 
Southern States and by several Northern States. The elec- 
tions in the fall of 1866 had shown more than a two-thirds 
majority in Congress for the Republicans, and by that ma- 
jority had condemned the President. These elections had 
given the endorsement of the country to the scheme of recon- 
struction embraced in the Fourteenth Amendment, and under 
the inspiriting influence of these elections the majority in the 
Senate ventured to pass the first Reconstruction Bill as above 
noted. 

It will be well, however, to remember the extent of this 
scheme, to contrast it with the scheme of the Fourteenth 
Amendment that had been endorsed at the preceding election. 

1. It provided for military rule, declaring the Southern 
State Governments illegal, whilst the Fourteenth Amendment 
was submitted to the then existing State Governments for their 
action, thereby recognizing their validity. 

2. The present bill provided for reorganizing the State 
Governments on Negro suffrage, and on a partial, though very 
large, white disfranchisement. The Fourteenth Amendment 
made no disfranchisement as to voting. 



180 The Political History of Slavery in the United States 

3. The bill, however, left to the people of the States the 
initiation and the management of the proceedings for a call 
of the convention. Congress had not yet gone to the point of 
initiating these proceedings, taking control of the elections, 
and declaring the result. 

On this point Mr. Sherman said : "The State communities 
are swept out of existence; and the people are required to 
proceed in their own way to form State governments." 

"No machinery is provided, it is true ; but we have three 
examples already in our own history of States being organ- 
ized by the people without any previous enabling act. Here 
is an invitation to the people. They can call their party con- 
ventions, their State conventions, and finally by a movement of 
the people, without regard to their local Legislature or local 
tribunals, a constitutional convention can be convened, elected 
by all the people, and they can form a Constitution." x 

4. It was still left to the States, — after they were thus 
reorganized, after their Constitutions had, as to suffrage, con- 
formed to the requirements of the law, and after their admis- 
sion to representation, — to change their Constitutions on the 
subject of suffrage according to their own views of propriety 
and safety. There were no fundamental conditions prescribed 
to be binding on the States after their admission to representa 
tion, in reference to suffrage or anything else. 

Congressional Globe, Second Session, 39th Congress, p. 1564. 



CHAPTER VI 

FURTHER MEDDLING 

The fortieth Congress met March 4, 1867, two days after 
this first reconstruction bill had become a law. 

Immediately on the assembling of Congress, Mr. Sumner 
introduced resolutions that looked to furnishing the Negroes 
with homesteads from the lands of the Southern whites that 
were to be confiscated, and to a further restriction of the suf- 
frage as against the whites. This action had been foreshad- 
owed by Mr. Sumner in the debate a few days before, on the 
passage of the reconstruction bill. 

The feeling was very strong among Republican Senators 
against reopening the question of reconstruction and adding 
new terms and conditions for the restoration of the Southern 
States. Evidently they were satisfied with what had been ac- 
complished, with respect to both the rights of the blacks and 
the humiliation and ruin of the whites. Mr. Sherman, in 
resisting, as we have seen, the demands of Mr. Sumner for a 
further disfranchisement of the whites, had affirmed that it 
was enough that the Southern whites had been humiliated and 
conquered, their pride broken, their bravest and best slain, 
their institutions overthrown, they themselves disfranchised as 
to office, and their slaves made their political equals. Speaking 
of the bill just before its passage, he said : "I trust now .... 
that we may have a platform upon which the Southern people 
can build up society in the Southern States, and that our great 
and glorious Union may be again united, with all the States 
represented, with all the stars displayed upon our banner." x 

Mr. Stewart had said the passage of the bill was a matter 
of congratulation. "I believe it is a grand measure of justice 
and generosity, and the passage of it is the greatest event 
.... that has happened since the surrender of Lee. I be- 
lieve it will give us peace and prosperity. It frankly says to 

1 Congressional Globe, Second Session, 39th Congress, p. 1626. 

181 



1 82 The Political History of Slavery in the United States 

the country that we have a plan of reconstruction, an honest, 
independent plan, in which all can see light, in which all can 
see justice, in which all can see mercy. Let the bill pass, and 
let the country be satisfied." x 

This feeling was so strong that when the vote was taken 
on the resolutions of Mr. Sumner, only a few days after the 
passage of the bill, they were laid on the table without even a 
reference to a committee, by yeas thirty-six, nays ten. The 
nays were Cole, Howe, Morton, Pomeroy, Sumner, Thayer, 
Tipton, Wade, Wilson, and Yates. Among the absentees were 
Senators Edmunds and Guthrie. 

Speaking on the resolutions of Mr. Sumner above referred 
to, Mr. Sherman said : 

"By a solemn act of Congress, passed by three-fourths of 
both Houses, we have said to the people of the rebel States 
that if they comply with certain terms and conditions they 
shall be restored to representation in Congress. That offer 
is still pending. It has been made to them by the American 
people through their representatives in Congress. We cannot 
with propriety add to the stipulations of that offer or take 
from them. We are bound by that proposition, reasonably 
bound, not, perhaps, in law, because we may vary the propo- 
sition till accepted ; but we have made them a proposition, and 
we are bound to give a reasonable time for acceptance, and 
then to execute it in good faith. . . . We have made them this 
offer. We are bound to carry it out in good faith .... 
When it is proposed to add new conditions, new stipulations, 
onerous burdens, we then do not act with them in a proper and 
ingenuous way. ... I believe the public interests of this great 
nation demand that those States should be restored to repre- 
sentation, and I believe that the terms of reconstruction pro- 
posed by Congress are satisfactory to the people of this coun- 
try. So far as we can gather from the newspapers and from 
all the evidences of public opinion, our constituents are satis- 
fied with the offer we have made." 2 

Then he declared his willingness to vote, if necessary, for 
a bill perfecting the machinery for the process of reconstruc- 
tion, providing for a call of a convention by Federal authority, 
prescribing voting by ballot, instead of viva voce, and the 

1 Congressional Globe, Second Session, 39th Congress, p. 1626. 

2 Congressional Globe, First Session, 40th Congress, p. 52. 



Further Meddling 183 

registry of voters, and naming the qualifications of the mem- 
bers of the convention. 

He said: "We have made them the offer; let them have 
a fair trial. If they should by fraud, or by the old fear by 
which they have kept a whole race in bondage, prevent them 
from sharing in that political power which we have given to 
them, we can hereafter protect the black people and the white 
people of the Southern States. In the meantime, we are bound, 
.... by every consideration of prudence, .... by every 
sentiment of honor, not to change the terms of our offer in any 
material respect." x 

He further said : "Pass such laws in aid of your previous 
enactment as you see proper. Prescribe, if you please, the 
forms of voting by ballot, the mode of organizing the conven- 
tion, and all the machinery that is required .... but let us 
not add one jot or one tittle to the stipulations contained in the 
offer we have made. Let us stand by it." 2 

Mr. Howard, of Michigan, was equally emphatic, saying: 
"We have made an honest, out-and-out proposition to the 
Southern people, black and white, proposing to them the 
means by which they can restore themselves to participation 
in the government of the United States as States of the Union ; 
and for one, sir, I am for keeping the pledge. It was made 
deliberately, and I shall be the last man to violate the pledge 
or attempt to retract it. 

"Nor will I attempt to superadd to this act of reconstruc- 
tion conditions which we did not impose at the time and which 
the bill itself does not contemplate; because that would be 
equally a departure from that uberrima fides which alone be- 
comes the Senate of the United States and the legislation of 
Congress on a subject so grave, so important." 3 

The views of these distinguished Senators were confirmed 
by the Senate on the vote, laying the resolutions of Mr. Sum- 
ner on the table, as before noted. 

It was thus adjudged by the solemn vote of the Senate, 
thirty-six to ten, that this bill was the finality of reconstruc- 
tion ; that no new terms and conditions would be imposed ; that 
not one "jot nor tittle" should be added as conditions of re- 

1 Congressional Globe, First Session, 40th Congress, p. 53. 

2 Ibid. 
*Ibid.j p. 56. 



184 The Political History of Slavery in the United States 

construction. And to this, as the final act, it was adjudged 
by solemn vote of the Senate that Congress was bound by 
"every sentiment of honor" and that the pledge must be re- 
deemed. 

It will be seen hereafter how this pledge of honor was 
observed. 

Two supplementary reconstruction Acts were very soon 
passed. The first, — which was passed March 23, 1867, — took 
the whole machinery of reconstruction out of the hands of the 
people of the Southern States and placed it in the hands of 
the military. It provided for registration of voters, for the 
holding of the elections for delegates to constitutional conven- 
tions, for the meeting of the conventions, and for the submis- 
sion of the proposed constitutions to popular vote. 

It added to the terms on which, according to the first Act, 
the States were to be entitled to representation by prescribing 
in addition to those terms : 

1. That it should appear to Congress that the election or 
ratification of the Constitution was one at which all the regis- 
tered and qualified voters had an opportunity to vote freely 
and without restraint, fear, or the influence of fraud, and 

2. That Congress should be satisfied that such Constitu- 
tion meets the approval of a majority of all the qualified elec- 
tors of the State, though, by the bill, the ratification was suffi- 
cient if voted for by a majority of those voting at the election, 
if one-half of the electors should vote. 

These additions were material. Congress by them was 
made the final judge of the election, instead of a body of 
agents appointed by the people as provided in the first Act. 
Under it Congress reserved the right to refuse admission to 
the Representatives of the Southern States, if it should de- 
termine that any voter was influenced by fraud or fear. And, 
what is most important of all, Congress reserved to itself 
the power to determine, — whatever might be the result of the 
election, and notwithstanding there was no improper influence 
or fraud, — whether the Constitutions met the approval of a 
majority of all the electors in the State, including those not 
voting, when in fact the first law only required as a requisite 
to the validity of the election that one-half of them should 
vote. So tremendous a power reserved, — resting on the un- 
restrained discretion of Congress, including in it the power 



Further Meddling 185 

to inquire into the opinion and wishes of those who refused or 
neglected to vote, — when properly considered was a plain 
violation of the pledge of honor to admit on certain defined 
conditions, as well as a reservation to Congress of the power 
to act on that matter according to its discretion. And it was so 
understood in the South. 

So, in less than a month after this solemn pledge was re- 
newed by an almost unanimous consent of the Senate, com- 
menced that systematic violation of the honor of Congress 
that continued with ever increasing violation of the public 
faith until the end. 

The effect of this last-named act was to take from the 
Southern people all control over the elections and to make the 
result of their action on the offer made by the first Act to give 
them representation in Congress depend on what the military 
should certify, and on what Congress itself should in its own 
discretion, with or without evidence, determine. The only act 
the Southern people could do in the way of acceptance or re- 
jection of this offer was to vote at the polls. Being thus re- 
lieved from all power, they were also relieved from respon- 
sibility, except the personal responsibility arising to each 
person for the casting of his own vote. There was and could 
be no organized community or State responsibility, for the 
Southern people were not permitted to speak or act otherwise 
than as individuals each for himself. 

The process of reconstruction began. During this process 
the Attorney General of the United States gave opinions as 
to the true meaning of the Acts. 

The Attorney General interpreted the first reconstruction 
Act as not intended to set aside the State governments, which 
he claimed were recognized by the Act as provisional. He 
also decided that persons who had held executive, judicial, and 
legislative offices, but who had not taken an oath to support 
the Constitution, were not disfranchised. The Attorney Gen- 
eral had also held that municipal officers were not included. 

These opinions were unsatisfactory to Congress. They 
gave a construction to the reconstruction Acts more favorable 
to the Southern people than suited the majority. Hence a 
second supplementary reconstruction law was passed July 16, 
1867. This bill declared the State governments illegal, and 
that, if continued, they were to be subject in all respects to the 



1 86 The Political History of Slavery in the United States 

military commanders of the district and to the paramount au- 
thority of Congress. 

It also gave the General of the Army and the commander 
of the district, with the approval of the General of the Army, 
power to remove any officer of those States and to detail an 
officer or soldier of the army to act in his stead, or to appoint 
any other person to perform the duties of the office; and it 
confirmed the prior acts of those commanders in removing 
State officials and appointing others in their stead. 

It declared that legislative, executive, and judicial officers 
of the States afterward engaged in rebellion should be dis- 
franchised whether they had taken the oath to support the 
Constitution of the United States or not; and that "executive 
and judicial office in any State shall include every civil office 
created by law for the administration of any general law of 
the State or for the administration of justice." It also pro- 
vided that no pardon or amnesty granted by the President 
should have the effect of taking away the disability occasioned 
by rebellion ; and that the district commanders and all officers 
acting under them should not be bound in their action by the 
opinion of any civil officer of the United States (meaning the 
Attorney General) ; and that all the officers appointed or de- 
tailed to act, or elected in said States, should take the oath 
required of officers of the United States that was commonly 
called the iron-clad oath. 

There was considerable debate on this bill whilst it was 
pending. It was shown by Mr. Conkling and others that the 
provisions allowing the district commanders to appoint to 
office in the Southern States was in violation of the Constitu- 
tion of the United States requiring all officers to be appointed 
by the President, the head of a department, or a court of law. 

Mr. Wilson offered an amendment declaring all the offices 
in those States vacant at the end of thirty days. This was not 
adopted, but the provision above noted, giving power to the 
General of the Army and the District Commander to remove 
them, was adopted in its place. In reference to Mr. Wilson's 
amendment Mr. Frelinghuysen declared, as to the retaining 
of the State officers, that there was no substantial difference. 
He declared he would not vote for it, even if he believed it 
wise, for he would "not add to what we declared to the South 
should be a finality." 



Further Meddling 187 

He declared also that he had no doubt "that the public will 
say that by the passage of the bill under consideration we have 
added to the reconstruction measures of the last Congress," 
but he went on to show that the view was incorrect. 1 

1 Congressional Globe, First Session, 40th Congress, p. 530. 



CHAPTER VII 

RECONSTRUCTION UNDER THESE LAWS 

In pursuance of these several Acts of Congress, which all 
became laws over the veto of the President, reconstruction 
proceeded in the several Southern States, except in Tennessee, 
which on July 24, 1866, had been admitted to representation 
in Congress under a Constitution framed in pursuance of the 
plan of Mr. Lincoln. 

ARKANSAS 

The State of Arkansas, on June 22, 1868, was admitted 
to representation by an act passed on that day over the Presi- 
dent's veto. 1 The preamble to the Act declared that the people 
of Arkansas had, in pursuance of the reconstruction laws of 
Congress, adopted a Republican Constitution and that the 
Legislature of the State had ratified the Fourteenth Amend- 
ment, and that therefore it was enacted that the State was 
entitled and admitted to representation in Congress as one of 
the States of the Union on the following fundamental condi- 
tion : "That the Constitution of Arkansas shall never be so 
amended or changed as to deprive any citizen, or class of citi- 
zens, of the United States of the right to vote, who are en- 
titled to vote by the Constitution herein recognized, except as 
a punishment for such crimes as are now felonies at common 
law, whereof they shall have been duly convicted under laws 
equally applicable to all the inhabitants of said State : Pro- 
vided, that any alteration of said Constitution prospective in 
its effect may be made in regard to the time and place of resi- 
dence of voters." 

1 U. S. Statutes at Large 15, Chap. 69, pp. 72 and 73. 

188 



Reconstruction Under These Laws 189 

NORTH CAROLINA, SOUTH CAROLINA, LOUISIANA, GEORGIA, 
ALABAMA, AND FLORIDA 

Three days after the admission of Arkansas, — to wit, on 
June 25, 1868, — an Act was passed over the President's veto 
for the admission of North Carolina, South Carolina, Louisi- 
ana, Georgia, Alabama, and Florida. 

The preamble was the same as in the case of Arkansas, 
and the fundamental condition was also the same, except that 
as to Georgia there was a further fundamental condition re- 
quiring the Legislature of Georgia to assent to a declaration 
made in the Act that certain portions of its Constitution that 
related to private debts should be null. 

The admission under these Acts was conditioned on the 
ratification by the several State Legislatures of the Fourteenth 
Amendment. 

The Constitution of Arkansas disfranchised as to suffrage 
and holding office all those who were disfranchised as to office 
by the Fourteenth Amendment or from voting under the re- 
construction laws, and those who took an oath of allegiance 
to the United States or gave bonds for good behavior during 
the rebellion and afterward gave aid, comfort, or countenance 
to those engaged in the rebellion. 

The Constitution of Alabama disfranchised as to voting 
and holding office : 

1. Those who during the late war violated any of the 
rules of civilized warfare. 

2. Those that were disqualified as to office under the 
Fourteenth Amendment, and were disqualified as to voting 
under the reconstruction Acts, "except such persons as aided 
in the reconstruction proposed by Congress and accept the 
political equality of all men before the law." The Legislature 
was empowered to remove disabilities under this clause. 

The Constitution of Georgia contained no disfranchise- 
ment on account of rebellion. 

The Constitution of Louisiana disfranchised, as to both 
voting and holding office, all those who under General Butler's 
order had elected to register themselves as enemies of the 
United States; leaders of guerilla bands in the late rebellion; 
those who in advocacy of treason wrote or published news- 
paper articles or preached sermons during the rebellion; and 



190 The Political History of Slavery in the United States 

those who in any State voted for or signed ordinances of seces- 
sion, — "unless such persons shall sign and file in the office of 
the Secretary of State and publish in the official Journal a 
certificate setting forth that he acknowledges the late rebellion 
to have been morally and politically wrong, and that he regrets 
any aid or comfort he may have given it," with a proviso 
excepting from disfranchisement all persons who, prior to 
July i, 1868, favored the execution of the reconstruction laws 
of the United States and openly and actively assisted the loyal 
men of the State to restore Louisiana to her position in the 
Union. 

The Constitutions of North Carolina and Florida gave 
suffrage without discrimination as to acts in aid of the re- 
bellion. 

The Constitution of South Carolina disfranchised from 
voting all those disfranchised as to office by the Fourteenth 
Amendment. 

It will be noted that at the same time that these several 
Constitutions were adopted by the people of these States mem- 
bers of the Legislature and other State officers were elected. 
The Act required these Legislatures to meet within twenty 
days after the passage of the Act unless sooner convened by 
the governor. When they acted by ratifying the constitutional 
amendment the President was by proclamation to declare the 
fact. 

These proclamations were issued by the President as fol- 
lows : 

As to Florida, on July the 1 ith, 1868. 

As to North Carolina, same date. 

As to South Carolina, on July the 18th, 1868. 

As to Louisiana, same date. 

As to Alabama, on July the 20th, 1868. 

As to Georgia, on July the 27th, 1868. 

On the 20th of July, 1868, the Secretary of State issued a 
proclamation reciting the ratifications, withdrawals of ratifi- 
cations, and rejections by certain States of the Fourteenth 
Amendment, and declaring that, if the withdrawals were in- 
valid, then the Fourteenth Amendment was a part of the Con- 
stitution of the United States. 

On July the 21st, 1868, Congress passed a concurrent reso- 
lution reciting: "That the Legislatures of the States of Con- 



Reconstruction Under These Laws 191 

necticut, Tennessee, New Jersey, Oregon, Vermont, West Vir- 
ginia, Kansas, Missouri, Indiana, Ohio, Illinois, Minnesota, 
New York, Wisconsin, Pennsylvania, Rhode Island, Michigan, 
Nevada, New Hampshire, Massachusetts, Nebraska, Maine, 
Iowa, Arkansas, Florida, North Carolina, Alabama, South 
Carolina, and Louisiana, being three-fourths and more of the 
several States of the Union, have ratified the Fourteenth 
Amendment, .... and, therefore, Resolved, that the said 
Fourteenth Article is hereby declared to be a part of the Con- 
stitution of the United States and it shall be duly promulgated 
as such by the Secretary of State." 

In accordance with this, Mr. Seward issued the required 
proclamation on the 28th of July, 1868. 

On July the 20th, 1868, Congress passed over the Presi- 
dent's veto an Act depriving each of the insurrectionary States 
of the right to vote in the Presidential election then pending, 
unless it should have been reorganized under the reconstruc- 
tion laws and "shall have become entitled to representation in 
Congress in pursuance of said Acts." 

Virginia, Texas, and Mississippi were still unreconstructed. 



CHAPTER VIII 

DEBATES AND ACTION ON THE RECONSTRUCTED STATES 

Some allusion has been made in reference to the material 
changes made in the supplementary Acts of reconstruction and 
to the wide discretion reserved by them to Congress. To 
understand fully these changes it is needful to state some of 
the important facts connected with the passage of the Joint 
Resolution of Congress admitting Tennessee to representa- 
tion in Congress. 

Under the administration of Mr. Lincoln, and in pur- 
suance of his plan, in February, 1865, a convention was held 
in Tennessee to remodel its Constitution. The remodeling 
consisted in amendments to the existing Constitution. By 
these amendments suffrage was confined to whites, except that 
power was given to the Legislature at its first session under the 
amended Constitution to prescribe qualifications for voters and 
limitations on the elective franchise. The amended Constitu- 
tion disfranchised many whites. Each elector was required 
to take an oath that he was an active friend of the United 
States and an enemy of the Confederate States ; that he re- 
joiced in the triumph of the armies and navies of the United 
States and in the defeat and overthrow of the Confederates; 
and that he would cordially oppose all armistices or negotia- 
tions for peace with the rebels until the Constitution of the 
United States and all laws and proclamations in pursuance 
thereof should be established over all the States and Terri- 
tories of the Union. 

The Legislature ratified the Thirteenth Article of Amend- 
ment, and the amended Constitution abolished slavery in 
Tennessee. 

Tennessee had, — according to the announcement made by 
Mr. Bingham, of Ohio, — prohibited the assumption or pay- 
ment of the rebel debt and the enslavement of men, ratified 
the Thirteenth Amendment, conformed her Constitution and 

192 



Debates and Action on the Reconstructed States 193 

laws to the Constitution and laws of the United States, and 
disfranchised rebels. 1 

In this condition Tennessee had applied to have her Sena- 
tors and Representatives admitted into Congress. 

A resolution was reported by the Reconstruction Commit- 
tee to effect this restoration. That resolution 2 recited the for- 
mation of the Constitution as above stated, on February the 
226. ; declared that it was Republican in form, that a State gov- 
ernment had been formed thereunder which proclaimed and de- 
noted loyalty to the Union, and that the people thereof were 
found to be in a condition to exercise the functions of a State 
in the Union; and then it provided that Tennessee "is hereby 
declared to be one of the United States of America, on an equal 
footing with the other States, but on the express condition 
that Tennessee should maintain and enforce in good faith the 
existing Constitution and laws excluding rebels from the elec- 
tive franchise and from office, for the respective terms pro- 
vided for; and that the State should never assume or pay any 
debt contracted in aid of the rebellion, nor claim compensation 
for emancipated slaves; and that this condition be ratified by 
the Legislature of Tennessee before the resolution should take 
effect." 

It was found expedient, however, by the members of the 
majority to get rid of this preamble. Mr. Bingham moved a 
substitute that was adopted and that entirely omitted the con- 
ditions above noted. 

Mr. Boutwell opposed the resolution mainly on the ground 
that the Constitution of Tennessee was not Republican in 
form, on account of the disfranchisement of Negroes. Among 
other results of this disfranchisement he stated this : "And 
I bid the people, the working people of the North, the men 
who are struggling for subsistence, to beware of the day when 
the Southern freedmen shall swarm over the borders in quest 
of those rights which should be secured to them in their native 
States. A just policy on our part leaves the black man in the 
South where he will soon become prosperous and happy. An 
unjust policy forces him from home and into those States 
where his rights will be protected, to the injury of the black 
man and the white man both of the North and the South." 8 

1 Congressional Globe, First Session, 39th Congress, p. 3980. 
8 Ibid., p. 3948. 8 Ibid., p. 3977- 



194 The Political History of Slavery in the United States 

Mr. Bingham, in reply, insisted that there should be equal 
rights for all the States, that Tennessee was entitled to equal 
rights with Ohio and Massachusetts. 1 

The substitute passed, — yeas 125, nays 12. 2 

When the resolution came to the Senate, Mr. Sumner of- 
fered as an amendment that the admission of Senators and 
Representatives was on the fundamental condition that there 
should be no denial of the elective franchise, or any other 
rights, on account of race or color. 

That was voted down, only four voting for it, — Brown, 
Pomeroy, Sumner, and Wade. 

It is thus seen that at this date, July, 1866, nothing more 
was required in the admission of a Southern State than the 
ratification of the Thirteenth Amendment, disfranchisement 
of rebels for a certain period, a repudiation of the rebel debt, 
and a disclaimer of all compensation for emancipated slaves. 
And it is most especially to be noticed that there was a distinct 
repudiation by both Houses of the pretension that the restora- 
tion of a State should be on a fundamental condition that 
restricted her exercise of any right reserved to her under the 
Constitution, and especially as to the elective franchise. 

The resolution for the restoration of Tennessee passed 
July 24, 1866. 3 

We now return to the action and debates of Congress in 
1868 with respect to the other Southern States. 

The first bill that came up was for the restoration of 
Arkansas. It was shown in the debate that the Constitution 
in Arkansas had not been in fact ratified. There was an ap- 
parent majority for ratification, but there was such excess of 
votes cast over voters registered in two counties as to destroy 
the integrity of the election, this excess being larger than the 
apparent majority for the Constitution. Nevertheless, it was 
deemed proper to restore Arkansas. This act of restoration 
in fact put in power for four years the men who had been 
elected at the time of ratification, and who, it was charged, 
managed and controlled the election in their own interests. 
So far as these four States were concerned everything was 
safe enough; but after that it was doubtful. So resort was 

1 Congressional Globe, First Session, 39th Congress, p. 3980. 

2 Ibid. 

8 XIV Statutes at Large, p. 364. 



Debates and Action on the Reconstructed States 195 

had for the first time to the idea of a fundamental condition 
that had been repudiated in the case of Tennessee with such 
singular unanimity. 

In the Senate there was a great debate on the validity of 
these fundamental conditions limiting the sovereignty of a 
State. All the great lawyers of that body, except Mr. Ed- 
munds and Mr. Stewart, concurred in their invalidity. 

Mr. Morton, among other things, said : 

"The right to regulate the question of suffrage belongs to 
the States under the Constitution. . . . Another right belongs 
to the States. ... It is .... a right to alter and amend 
their Constitutions at pleasure, so that they do not change 
their republican character. . . . The [United States] Govern- 
ment has no right and it has no power to impose a fundamental 
condition on any State by which the State parts with any right 
which it has under the Constitution of the United States. A 
State cannot alienate her rights under the Constitution of the 
United States any more than a man can alienate those great 
natural rights that belong to him." 1 

He said the theory on which the fundamental condition 
was supported "will destroy this Government; destroy the 
equality of the States. . . . The symmetry of the Government 
is gone." 2 

He further said : "That this legislation would be a blemish 
upon the legislation of Congress, that it would form a danger- 
ous precedent." 3 

Mr. Conkling made a great argument against the validity 
of the fundamental condition. He referred to and commented 
on the various decisions of the Supreme Court on the subject, 
some of which had been cited by Mr. Edmunds. 

Referring to the phrase "on an equal footing with the 
other States" as having originated in an Act of Congress, he 
said : "No matter, sir ; usage makes law, and I do not stop 
to inquire the origin of this phrase. We all know that in- 
wrought with the genius of our Government, imbedded in our 
organism, written in the Constitution again and again, is the 
equality of the States in all the attributes attaching to States 
as such .... That to the people of Arkansas, and to no 

1 Congressional Globe, Second Session, 40th Congress, p. 2603. 

2 Ibid., p. 2742. 
'Ibid., p. 2743. 



196 The Political History of Slavery in the United States 

other earthly tribunal, belongs the right, so long as they con- 
tinue their government republican in character, to modify it, 
to change it, to rearrange it, to adapt it, as they please, to the 
wants which from time to time present themselves." * 

Mr. Buckalew, Mr. Hendricks, Reverdy Johnson, Mr. 
Doolittle, and others made great speeches against the funda- 
mental condition. 

Mr. Trumbull, the chairman of the Judiciary Committee, 
who reported the bill, admitted that the condition was uncon- 
stitutional, but said, nevertheless, that he would vote for the 
bill with the condition in it. He said, referring to Mr. Doo- 
little's position that the fundamental condition was unconsti- 
tutional : "I do not know that I would disagree with the Sena- 
tor from Wisconsin on that point. I believe the people of 
Arkansas will have the same right to change their Constitution 
when they are recognized as having a State government en- 
titled to representation in Congress as the people of Wiscon- 
sin, or the people of Illinois now have, and I am very sure that 
the people of my State [Illinois] claim the right to regulate 
suffrage for themselves. I think the people of Arkansas will 
have the same right. 2 .... I shall vote for the bill as it 
came from the House if the Senate shall not strike out the 
condition, yet since the Senator from Connecticut [Mr. Ferry] 
has moved to strike it out, I shall be compelled to vote for the 
motion, because I regard it as a condition that cannot be en- 
forced." 3 

Mr. Edmunds made a strong argument in favor of the con- 
stitutionality of the condition. He cited and relied on Green 
v. Biddle, 8 Wheaton's Reports. 

Mr. Edmunds, in opposing the admission of Arkansas until 
the Fourteenth Amendment had become a part of the Consti- 
tution, alluded to the fact that it had not yet been ratified by 
three-fourths of all the States, and to the contention of some 
that only three-fourths of the States represented in Congress 
was all that was required, and said : 

"It is contended by another class of statesmen and jurists, 
whose purity is not to be questioned, that the Constitution 
plainly means that three-fourths of the States is three-fourths 

1 Congressional Globe, Second Session, 40th Congress, p. 2666. 

2 Ibid., p. 2699. 
8 Ibid., p. 2700. 



Debates and Action on the Reconstructed States 197 

of all the States, and, therefore, in order to have it become a 
part of the Constitution, you must have twenty-eight States 
assent to it, instead of nineteen, or whatever the number other- 
wise would be. I confess, Mr. President, that the inclination 
of my mind is, if it is of any value to anybody to know it, in 
favor of the latter proposition. I hold myself ready to change 
my opinion if I shall be convinced, or that inclination, if it 
shall turn out to be wrong." * 

Attention has been called to the declarations of Mr. Sher- 
man, Mr. Howard, and others against adding to the terms of 
reconstruction. The plighted faith of the government, as 
argued by them, to restore the right of representation to the 
Southern States on their complying with the terms of the re- 
construction laws was also urged against the adoption of this 
fundamental condition. 

Mr. Ferry, of Connecticut, moved to strike out that con- 
dition from the bill, and in support of that he said : 

"Mr. President, the bill as proposed to be amended .... 
is in exact accordance with the reconstruction laws passed by 
Congress during the last year and a half, and is in fulfillment 
of the pledge given over and over again by this Congress that 
upon compliance with certain conditions these States should 
be admitted to representation in Congress and to all Federal 
functions; and it is because, among other things, I do not 
wish to see the plighted faith of Congress, the plighted faith of 
the great party to which I belong, and connected and bound 
up with which are all the interests of this country, broken by 
this same Congress, that I wish to have the bill passed without 
imposing further conditions than our former legislation had 
imposed." 2 

He also declared the condition unconstitutional. 3 

On the motion to strike out the condition, the ayes were 
20 and noes 21. 4 

The same fundamental condition was embraced in the Act 
restoring the other Southern States above mentioned. 

That Mr. Ferry was right in declaring that the imposition 
of this fundamental condition was a violation of the plighted 

1 Congressional Globe, Second Session, 40th Congress, p. 2662. 
9 Ibid., p. 2628. 

3 Congressional Globe, First Session, 40th Congress, p. 2628. 
* Ibid., p. 2701. 



198 The Political History of Slavery in the United States 

faith of Congress as contained in the reconstruction laws is 
too clear for controversy. It was a great deal more than the 
addition of a "jot or tittle" to the terms of reconstruction 
that Sherman had solemnly said would be a breach of honor 
on the part of Congress; it was a substantial and material 
variation of the terms of reconstruction in that it required 
the States to surrender as a condition of restoration to their 
normal relations to the Union an essential part of their sov- 
ereignty, the possession of which by them was needful to 
their safety. This condition, if valid, made these States un- 
equal in the Union and deprived them of powers deemed 
essential to the welfare of all the others. If invalid, it was a 
clear usurpation of power with the design of menacing the 
Southern States with a total loss of representation in case they 
exercised a clear constitutional right. This imposition was 
made by a Congress composed of Senators and Representa- 
tives from States claiming and enjoying the full sovereign right 
of regulating suffrage at their will, States that had, in the 
exercise of this power, with singular unanimity rejected in 
their own borders the suffrage that they thus attempted to 
impose on others, and did impose so far as an act of Congress 
could impose it. The condition, it must be remembered, was 
not simply the imposition of Negro suffrage without discrimi- 
nation, as between them and the whites, but it was the imposi- 
tion of universal Negro suffrage thus taking away, or assuming 
to take away for all time to come, the power of the Southern 
States to require such qualifications for voters as education, 
good character, and payment of taxes, — qualifications that 
had been imposed by many of the Northern States, and espe- 
cially by Pennsylvania, Massachusetts, Connecticut, and Rhode 
Island. The condition imposed, is, indeed, as I believe, un- 
constitutional, and such is the opinion of Southern statesmen. 
Yet no Southern State, except one, 1 notwithstanding all that 
they have all suffered from a corrupt and ignorant Negro 
suffrage, has yet dared to disregard the condition. 2 The same 
contempt for constitutional obligations that inspired the im- 
position, it has been and is now feared, would endanger the 
status of the Southern States, if the condition be disregarded. 

1 See Mr. George's speech in defense of the Constitution of Miss. 
Congressional Record, 51st Congress, Second Session, pp. 1779-1828. 
3 Written about 1891-2. 



Debates and Action on the Reconstructed States 199 

But in all this legislation there is ample food for reflec- 
tion, and I fear ample cause for alarm for the thoughtful 
patriot. It has been shown that the Senate solemnly repudi- 
ated the pretension of Mr. Sumner that the Constitution could 
be amended by three-fourths of the remainder of the States, 
after deducting those that had been in insurrection. It has 
been shown also that Mr. Edmunds, one of the greatest jurists 
that ever had a seat in Congress, entertained the opinion that 
amendments must be submitted to the Southern States, and 
that they had the constitutional right to act on them, and that 
their action was to be counted in making the ratification. It 
has been shown also that the Supreme Court had held that the 
Union was indissoluble and the States indestructible. It is a 
fact therefore that no amendment of the Constitution could 
be made except by the concurrence of some of the ten Southern 
States that had been in insurrection, even if all the other 
States should ratify it. So that it was essential to the validity 
of the amendment that some, at least, of the ten Southern 
States should ratify it. 

The Constitution means, when it requires that a proposi- 
tion to amend the Constitution shall be submitted to the States 
for their action, that it shall be submitted for their voluntary 
action, to be ratified or rejected by each State, according as 
its unbiased judgment shall determine. To deny this is to 
deny that this is a free Government. If Congress may not 
only propose amendments, but may take steps by force to 
compel any State to ratify them, Congress has full power to 
amend the Constitution as it may see proper. The submission 
to the States becomes an unmeaning form. If Congress may 
compel one State to accept an amendment, it may compel as 
many as it may deem needful. It is no answer to say that it 
may compel a State that has been in insurrection, but may not 
compel others. For if the Constitution, as Mr. Edmunds ad- 
mitted and the Senate had decided, required the submission of 
the amendment to these States and made their assent essential 
to valid ratification, then it also required that such submission 
should be in accordance with the Constitution itself. It would 
be absurd to say that the Constitution required a submission 
in violation of its own provisions, that it required the assent 
of a State, and then that the assent of the State was not neces- 
sary. For if the assent of the State came not by its voluntary 



200 The Political History of Slavery in the United States 

action, but through force imposed by Congress, the assent was 
not the act of the State, but the mere act of obedience to an 
irresistible power. The Constitution requires no such useless 
formula. 

The position of those who held that the eleven insurrec- 
tionary States were not to be considered in counting the three- 
fourths necessary for ratification was, at least, the more logi- 
cal, and yet not less revolutionary. They held that these States 
were not States, or, at least, not States in the sense that 
they were constituents to which an amendment to the Consti- 
tution can, or ought to be, submitted. Holding this, they 
claimed, as Mr. Blaine expressed it, that the submission to 
them was not for the purpose of having an effective act done, 
to have a ratification of the amendment, but that their action 
of ratification, enforced on them by Congress, was only to be 
considered as an act qualifying them for restoration to the 
Union. But under this view the submission of the amendment 
to them was itself unconstitutional, for there is no warrant 
in the Constitution for the submission of amendments to any 
organization but States constitutionally qualified to act on 
them. 

It is proper here to state the proceedings in Congress on 
this question. 

On January 10, 1868, the President, in response to a reso- 
lution of the House of Representatives, sent in a message 
stating that the Fourteenth Amendment had been ratified by 
twenty-two States, Tennessee being the only State that had 
been in insurrection that had then ratified. Mr. Sumner, on 
the same day, January 10, introduced in the Senate a resolu- 
tion, naming the twenty-two States that had ratified, and 
declaring that the Fourteenth Amendment had been duly rati- 
fied by three-fourths of the States, and was a part of the Con- 
stitution. This was referred to the Committee on the 
Judiciary, and was never reported on. 

On January 13, Mr. Bingham introduced into the House 
a similar resolution declaring that the amendment had been 
duly ratified. This was referred to the Committee on the 
Judiciary, and was never reported back by that committee. 

Matters stood in this way until July 18, 1868, when, after 
the ratification by Arkansas, Louisiana, Florida, North Caro- 
lina, and South Carolina, Mr. Sherman introduced a resolu- 



Debates and Action on the Reconstructed States 201 

tion declaring the Fourteenth Amendment adopted. This was 
referred to the Committee on the Judiciary. 1 

On July 20 Mr. Seward issued his proclamation reciting 
the ratification of the amendment by certain named States, as 
appears by ''official documents on file" in the State Depart- 
ment, and reciting that it appeared from "documents" on file 
(omitting "official") that the amendment had been ratified "by 
newly constituted and newly appointed bodies avowing them- 
selves to be and acting as the Legislatures, respectively, of the 
States of Arkansas, Florida, North Carolina, South Carolina, 
and Alabama," and reciting also the withdrawal of their rati- 
fications by Ohio and New Jersey, and then stating that if the 
said withdrawals were invalid, then the said amendment was 
ratified and valid as a part of the Constitution of the United 
States. 

Thereupon, on the same day, July 20, 1868, the resolution 
of Mr. Sherman was recalled from the Committee on the Ju- 
diciary, who had not then acted on it, and the resolution was 
made concurrent instead of joint, so as to evade the necessity 
of presenting it to the President, and it was then adopted in 
the Senate without a division. 2 This resolution recites a ratifi- 
cation by thirty-one States, naming them, and including Ohio 
and New Jersey, and also Arkansas, Florida, North Carolina, 
South Carolina, Alabama, and Louisiana, — "being three- 
fourths and more of the several States of the Union." 3 

On the next day the resolution was reported to the House, 
and under the operation of the previous question was passed 
without debate the same day, — yeas 127, nays 35.* 

Thus did Congress finally settle that the Southern insur- 
rectionary States were constitutionally competent to act upon 
the proposed amendment, and that three-fourths of all the 
States, including them, was necessary to a valid ratification. 

The Ohio resolutions withdrawing the ratification of that 
State were presented in January, 1868. Mr. Sherman debated 
them on the line that they did not express the real opinion of 
the people of Ohio. 

Mr. Sumner took the position that as nineteen States and 

1 Congressional Globe, Second Session, 40th Congress, p. 4197. 

2 Ibid., p. 4266. 
1 Ibid., p. 4266. 
4 Ibid., p. 4296. 



202 The Political History of Slavery in the United States 

more (three- fourths of those having representation in Con- 
gress) had assented, the act of Ohio in withdrawing was not 
valid. Reverdy Johnson insisted that it took three-fourths 
of all the States, and that a State had a right to withdraw its 
ratification before the necessary three-fourths had assented, 
and thereby made the amendment a part of the Constitution. 1 

In the House the resolutions of withdrawal of Ohio were 
referred to the Committee on the Judiciary, without debate. 2 

On March 30, 1868, Mr. Haight, of New Jersey, presented 
the resolutions of the Legislature of that State, withdrawing 
its ratification of the Fourteenth Amendment. Mr. Haight 
tried to get the resolutions read, but only partly succeeded. 

On motion of Mr. Washburne, of Illinois, the following 
resolution under the operation of the previous question was 
adopted : 

"Resolved, That the resolutions of the Legislature of the 
State of New Jersey purporting to withdraw the assent of 
said State to the constitutional amendment known as the Four- 
teenth Amendment be returned by the Speaker of the House to 
the gentleman who presented it, for the reason that the same 
is disrespectful to the House and scandalous in character, and 
that its title only shall be referred to in the Journal of the 
House and in the Congressional Globe/' The yeas were 
eighty, and nays seventeen. 

It is well to note, however, that Mr. Washburne amended 
his resolution (as first offered) before the vote, by striking 
out the last clause in these words "and further that this House 
denies the constitutional right of any State Legislature to with- 
draw such assent." 3 

There are some other proceedings with reference to the 
reconstruction of the Southern States that are needful to be 
set out. 

General Meade, the District Commander governing Ala- 
bama, reported as the result of the election in that State that 
the Constitution had been defeated ; and he recommended that 
this convention be called together again, and a more liberal 
Constitution framed, which, if done, he thought would meet 
the approval of a majority of the voters in the State. He also 

1 Congressional Globe, Second Session, 40th Congress, pp. 876, 7, 8. 

2 Ibid., pp. 890-1. 

3 Ibid., pp. 2225-6. 



Debates and Action on the Reconstructed States 203 

called "attention to the difficulty of carrying on a government 
in a State where so small a proportion of those qualified to take 
part in the Government are in favor of the organic law." x 

Mr. Stevens, in reference to Alabama, said : 

"After a full examination of the final returns from Ala- 
bama, which we had not got when this bill was drawn, I am 
satisfied, for one, that to force a vote on this bill and admit the 
State against our own law, where there is a majority of 
twenty-odd thousand against the Constitution, would not be 
doing such justice in legislation as will be expected by the 
people." 

And the bill on which he spoke, being for the restoration 
of Alabama, was amended so as to continue a provisional 
government, and require a resubmission of the Constitution 
to the people. 2 

Nevertheless, a bill embracing Alabama, Georgia, North 
Carolina, South Carolina, Florida, and Louisiana was passed, 
as before stated. 

In opposition to this bill Mr. Beck spoke with great force 
and fullness of information. He urged the failure of the 
adoption of the Constitution of Alabama by the people. He 
spoke of the miserable constituency on which all these Con- 
stitutions were founded. He alleged that the men who com- 
posed the conventions in those States were men who had no 
substantial interests in the community, were adventurers and 
Negroes, a majority of whom could neither read nor write. 
Speaking of the Negro voters, he said : "They knew no more 
about the fundamental laws they were called upon to frame 
than so many horses or mules; a few managers and political 
tricksters, who monopolized the lucrative offices, controlled the 
whole. The fact appears in all the publications of the day, and 
is true beyond all peradventure, that hundreds and thousands 
of Negroes who came to the polls to vote for the Constitutions 
and the officers under them came from the plantations with 
halters in their hands, that they might lead home the mules 
they expected to receive; for forty acres of land and a mule 
were promised to every ignorant Negro who would vote for 
the Constitutions." 3 

1 Congressional Globe, Second Session, 40th Congress, p. 2447. 

2 Ibid., p. 2447. Speech of Mr. Beck. 

3 Ibid., p. 2447. 



204 The Political History of Slavery in the United States 

Speaking of South Carolina, he said they had provided for 
common schools in which both blacks and whites were to be 
taught together, and that the whites that refused to send their 
children to these schools were subject to such penalties as a 
Negro legislature might impose. That whilst these legisla- 
tures were spending millions of other people's property, they 
do not bear a dollar of the burden. He showed that the whole 
amount of taxes paid by members of the Legislature was 
$700, of which $390 were paid by six members, leaving $310 
for all the others. That the members of the constitutional 
convention all paid $879.54 of taxes, of which one man, a 
Democrat, paid $508.85, and three others paid $210.50, leav- 
ing $160.19 f° r a ^ the others. He said that the maxim of 
South Carolina was, "Taxation without representation for the 
white man, and representation without taxation for the 
Negro." x 

He urged with great force the objection based on the dis- 
franchising clauses in the Constitutions of South Carolina and 
Louisiana. 

Speaking of the disfranchisement of the whites by the 
Fourteenth Amendment, he said that it was found necessary 
for Congress to pass a bill removing the disabilities of five 
hundred and sixty in North Carolina, in order that the State 
Government under the new Constitution could be put in opera- 
tion, and five hundred and forty-one in Georgia for the same 
purpose. 2 

Notwithstanding these objections, the bill for restoration 
of these States passed, as before stated. 

In Texas and Mississippi the Constitutions framed by these 
conventions were so infamous, and the vote rejecting them so 
pronounced, that Congress, notwithstanding the most strenu- 
ous efforts of the local politicians, was obliged to hold them 
to be defeated. 3 But a new reconstruction bill was passed for 
those States after President Grant's inauguration, a bill in 
which he was authorized to have the Constitutions resubmitted, 
with certain clauses to be selected by him submitted sepa- 
rately. 

1 Congressional Globe, Second Session, 40th Congress, p. 2448. 
* Ibid., p. 2450. 

' In Virginia, owing to a want of funds, the military commander 
could not hold an election. 



Debates and Action on the Reconstructed States 205 

Reconstruction was now complete except as to the three 
States of Virginia, Texas, and Mississippi, and it was reason- 
ably certain that they, too, would soon be restored on the 
terms required. This was in July, 1868. Very soon after- 
ward Senators and Representatives were admitted from all the 
States except those three, except that Senators were not ad- 
mitted from Georgia until 1871. 

This was due to the circumstances that surrounded the 
election of Senators by the first reconstructed Legislature of 
Georgia. Several members were chosen to that Legislature 
who were said to be ineligible under the Fourteenth Amend- 
ment. And as the military commander, General Meade, under 
whose direction the election was held, did not feel that he had 
the right to pass upon the question of their eligibility, he certi- 
fied their election to the respective Houses. They all partici- 
pated in the election of the United States Senators. 

Very shortly afterward the white members of the Legis- 
lature combined their strength and turned out a good many 
negro members, which gave the whites complete control. 

The State was refused admission to representation in the 
Senate until further measures for reconstruction were taken 
in her case, and these measures were not completed until 1871, 
when her Senators were admitted to their seats just a little 
while before the terms for which they were elected would 
expire. 

It will hereafter be explained how Congress was enabled 
to push the reconstruction measures through by depriving the 
Supreme Court of jurisdiction of cases in which their consti- 
tutionality was involved. So nothing remained but the un- 
bridled will of Congress to impose such measures as they 
deemed fit in order to complete the subjugation and humilia- 
tion of the Southern people, and to subject them to the rule of 
incompetent Negroes. 

The effort had been all along, as the reader has seen, to 
unsettle and destroy the political power of the South. Negro 
suffrage in the beginning was not sought for as a main or prin- 
cipal end to be attained ; it was a mere accessory. The Four- 
teenth Amendment had been framed on the idea of depriving 
the South of political power, so far as representation was 
based on Negroes, unless the Southern States by their own 
action would grant Negro suffrage. By this amendment the 



206 The Political History of Slavery in the United States 

choice was distinctly left to the Southern States to take dimin- 
ished political power or Negro suffrage. It was hoped by 
some that Negro suffrage would be conceded, and then it was 
hoped that as, it was admitted, the Negro was wholly incompe- 
tent to act for himself, he would vote, as Mr. Fessenden ex- 
pressed it, "under such good advice as might be given him." 
It was as certain as anything could be that, as he had been 
emancipated by the North against the will of his master, the 
Negro would go to the North, the Republican party of the 
North, for that good advice. In case, therefore, of his en- 
franchisement, it was certain that the whole mass of the 
Negroes in the South would have been added to the political 
power of the North, or rather of the dominant party in the 
North. In this way it was hoped that the Southern States 
would degenerate into mere provinces, not indeed visibly and 
by the forms of law governed and controlled by a force ab 
extra, and coming from the North, but by influence from the 
same quarter exerted on blind, prejudiced, weak, and ignorant 
Negroes. 

It is to be deplored that this proposition of Negro suffrage 
or diminished political power was not submitted singly and 
alone to the Southern States, and without the addition of other 
terms that involved disgrace and dishonor to the Southern 
people. For the proposition, however intended, was reasonable 
in the then condition of the country. The South could not 
reasonably hope to retain power based on a race to which she 
refused political rights, except as the result of a compact to 
that effect. The war had been waged on an idea that consti- 
tutional compacts in reference to slaves and Africans would 
not be observed, and the Southern States would probably have 
concluded, if that question alone had been put to them, that, as 
they granted no political power to the Negro in their own 
borders, it would be proper to surrender power based on the 
Negro in national affairs. 

The Northern people were not enamoured of Negro suf- 
frage. In all those States outside of New England the Negro 
was denied suffrage, except in New York, where he was re- 
quired to have a property qualification. Even in New Eng- 
land, — in Massachusetts, Connecticut, and Rhode Island, — 
there were such qualifications required of voters as would have 
excluded ninety-nine in a hundred of the Negro adult males 



Debates and Action on the Reconstructed States 207 

in the South ; and in Connecticut he was excluded because he 
was a Negro, however otherwise he might be qualified. Nor 
had the Northern mind been changed on the subject by the 
war. For after the war commenced propositions to admit 
Negroes to suffrage in Ohio, Illinois, Kansas, Michigan, Con- 
necticut, and Wisconsin had been voted down by large majori- 
ties. Some of these States, if not all, were intensely Republi- 
can and anti-slavery. New Jersey and Ohio had withdrawn 
their assent even to the Fourteenth Amendment, and a few 
months later, October 15, 1868, Oregon withdrew hers. Be- 
sides this, as has been shown, it was avowed in Congress by 
Mr. Garfield, Mr. Wilson, Mr. Stevens, and others that the 
public feeling of the North was against it. 

So when the Southern States had rejected the Fourteenth 
Amendment, and the President had been repudiated in the 
elections in the fall of 1866, it was determined to inflict Negro 
suffrage on them ; it was essential that the leaders in the move- 
ment should so manage as not to alarm the North with the 
idea that Negro suffrage was to be imposed on that section. 
It has been shown that efforts in the very beginning were made 
by Mr. Stewart, Mr. Wilson, and others to impose Negro suf- 
frage on the South alone. 

But it will be remembered that when it was proposed in 
the reconstruction bills to impose Negro suffrage on the South, 
the effort was not to impose it irrevocably, but only during 
reconstruction, and in the Constitutions framed in the process 
of reconstruction. These Constitutions, being subject to 
amendment at the will of each State, could, therefore, have 
no eternal effect. They merely gave the Negro the franchise 
along with the whites, and left it to the States afterward to 
continue it or not, as should be deemed best, with the penalty, 
however, that if they rejected it they should lose political 
power to that extent. This was the view throughout until 
there had been Constitutions framed in Arkansas, Louisiana, 
Florida, Georgia, North Carolina, South Carolina, and Ala- 
bama, coupled with a State organization in each that was 
produced by reconstruction, and that was wholly subservient 
to the will of the dominant party in Congress. After these 
organizations had proceeded to the extent that it required only 
the recognition of Congress to make them the actual governing 
power for these States, and not before, the attempt was made, 



208 The Political History of Slavery in the United States 

through the fundamental conditions, as we have seen, to make 
Negro suffrage irrevocable in the Southern States. 

But whilst these proceedings were going on, — in May, 
1868, — the Republican National Convention met in Chicago 
and nominated General Grant for President. That convention 
was so strongly impressed with the conviction that the North- 
ern States, however they might tolerate Negro suffrage when 
inflicted on the South, were utterly opposed to it themselves, 
as to adopt the following resolution : 

"The guarantee by Congress of equal suffrage to all loyal 
(colored) men at the South is demanded by every consid- 
eration of public safety, of gratitude and of justice, and must 
be maintained, while the question of suffrage in all the loyal 
States properly belongs to the people of those States." 

The sentiment was so strong in the North that this explicit 
denial of any wish to amend the Constitution so as to inflict 
Negro suffrage on that section was deemed essential. Mr. 
Conkling, as we have seen, had expressed it "that the genius 
of our institutions" required control by the States of suffrage 
in their borders. 



CHAPTER IX 

REPEAL OF THE LAW AS TO APPEALS TO THE SUPREME COURT 

Any account of the process of reconstruction that would 
omit that action of Congress that prevented a review by the 
Supreme Court of the constitutional questions involved would 
be defective indeed. 

In order to cripple the Southern States as they had been 
reconstructed under the President's policy in the difficult task 
imposed on them by the sudden emancipation of slaves, Con- 
gress, on February 5, 1867, deemed it necessary to enlarge the 
appellate jurisdiction of the Supreme Court; and, accordingly, 
on that date passed an Act allowing appeals or writs of error 
to review the judgment of any circuit court in cases of habeas 
corpus, wherein it was alleged that the petitioner was re- 
strained of his liberty in contravention of the Constitution or 
of any treaty or law of the United States. 

W. H. McCardle, an eminent citizen of Mississippi, had 
been tried and convicted by a military commission organized 
under the reconstruction laws on charges of having incited to 
riot and disorder, impeding reconstruction, and so on, by pub- 
lications in a newspaper of which he was the editor. Believing 
that his trial and conviction and imprisonment in a time of 
peace, and in a State in which the State and United States 
Courts were open and regularly held, was a deprivation of his 
liberty in contravention of the Constitution of the United 
States, McCardle sued out habeas corpus before the United 
States Circuit Court in Mississippi. That court, as well as all 
the United States courts that were then organized in the 
Southern insurrectionary States, deemed an Act of Congress 
superior to the Constitution of the United States. The Court, 
therefore, refused relief, and remanded McCardle to the cus- 
tody of the military for punishment. McCardle, under this act 
of February 5, 1867, above cited, sued out a writ of error to 
have his case reviewed by the Supreme Court of the United 
States. 

209 



210 The Political History of Slavery in the United States 

By this statement it is seen that the question for the de- 
cision of the Supreme Court was the constitutionality of the 
reconstruction laws establishing a military government under 
and by which reconstruction was to be effected. The question 
was of immense importance not only to the Southern people, 
who had thus been subjected to military rule in order to pro- 
cure their assent to an amendment of the Constitution, but 
also to the people of the whole Union, whose fundamental 
law was, by such agencies, to be subject to abrogation or 
change. 

The Supreme Court at that time was composed of eight 
Judges. They were Chief Justice Chase, of Ohio, and Asso- 
ciate Justices Nelson, of New York ; Grier, of Pennsylvania ; 
Clifford, of Maine; Swayne, of Ohio; Miller, of Iowa; Davis, 
of Illinois, and Field, of California, — who were all from the 
Northern States, five of them having been appointed by Mr. 
Lincoln after the war commenced. This, on merely sectional 
and party grounds, would seem to be sufficiently favorable to 
the action of Congress. 

The immense importance of the question involved was 
seen at once by the dominant majority. The first effort was to 
get rid of the case by a plea to the jurisdiction of the court. 
Eminent counsel were engaged on behalf of the Government 
to sustain this plea. Among them was Judge Trumbull, the 
chairman of the Committee on Judiciary in the Senate, whose 
pernicious activity, directed by the highest professional attain- 
ments and the greatest talents, had wrought with fatal effect 
in causing the enactment of the most stringent provisions of 
the reconstruction laws. This jurist and statesman, for in 
both characters he appeared before the court, in arguing the 
motion to dismiss the case for want of jurisdiction, undertook 
to enlighten the court as to the motives for the enactment of 
the law of February 5, 1867, under which jurisdiction was 
claimed. In this way it was sought to limit the plain meaning 
of a statute by the suggestions of one of its authors as to what 
was designed by its framers. 

He said : "What was the purpose of the act [of February 
5, 1867] ? We all know. It is matter of legislative, nay, of 
public history. It was to relieve persons fr v om a deprivation 
of their liberty under State laws ; to protect loyal men in the 
rebel States from oppression under color of State laws ad- 



Repeal of the Law as to Appeals to the Supreme Court 211 

ministered by rebel officers ; to protect especially those who had 
formerly been slaves, and who, under color of vagrant and 
apprentice laws in some of the States, were being reduced to a 
bondage more intolerable than that from which they had been 
recently delivered . . . ." x 

The Supreme Court, — though five of its eight members 
belonged to the party dominant in Congress and they were all 
steadfast adherents of the Union in the late conflict, — was 
superior to the influence of such arguments. It had on more 
than one occasion before this, unawed and uninfluenced other 
than by its own conceptions of duty, stood firmly in defense 
of the Constitution. It did not fail to remember that it was 
"the tribunal which is ultimately to decide all judicial ques- 
tions confided to the Government of the United States," nor 
that it was the creation of the Constitution itself as the ap- 
pointed tribunal "to decide between the Government of the 
United States and the Government of a State," "and that to 
insure its impartiality it was absolutely necessary to make it 
independent of the legislative power and the influence, direct 
or indirect, of Congress and the Executive." 2 

The Court unanimously sustained its jurisdiction under the 
Act above cited. 

This decision would have subjected to this great court, the 
appointed arbiter in the last resort of all questions of consti- 
tutional power of the Federal Union, the validity of the recon- 
struction laws. As if conscious of the usurpation of power in 
the Reconstruction Acts, the leaders of the majority were 
determined that the validity of those measures should not 
undergo the scrutiny of that tribunal that had been designated 
by the Constitution to settle such questions. So when the 
case had been fully and ably argued on its merits on the sec- 
ond, third, fourth, and ninth of March, 1868, and was then in 
the consultation room of the Judges, and not yet disposed of, 
the following proceedings in relation thereto took place in 
Congress, which resulted in depriving the court of its jurisdic- 
tion and left Congress supreme, with no other restraint than 
their own unbridled will and inflamed partisan animosities. 

The Senate had passed a short bill of one section only, 

1 6 Wallace, U. S. A., p. 322. 

2 Chief Justice Taney, in Gordon v. U. S., 117 U. S. R., 700 and 
701. 



212 The Political History of Slavery in the United States 

providing for a revision by the Supreme Court of the United 
States of all judgments rendered against any officer of the 
internal revenue for any act done by him and for money re- 
ceived by him and paid into the treasury of the United States. 
The object of this bill, as it will be seen, was solely to place 
internal revenue officers on the same footing exactly as to the 
right of appeal to the Supreme Court as customs revenue offi- 
cers. It was a bill to enlarge, not to diminish, the appellate 
jurisdiction of the court. 

On March 9, 1868, whilst the great argument in the Mc- 
Cardle case was being concluded before the Supreme Court 
this Senate bill was pending before a committee of the House. 
It would seem that the argument before the Supreme Court 
was such as to convince the friends of the reconstruction meas- 
ures that the judgment of the court, if allowed to be pro- 
nounced, would be against the validity of these measures. For 
it was arranged that on the 12th of March, three days after 
the conclusion of the argument and the final submission of the 
McCardle case to the action of the court on its merits, Mr. 
Schenck should ask the unanimous consent of the House 
(which the Speaker had decided was necessary) to call up this 
Senate bill, saying it came from the Finance Committee of the 
Senate, and that he desired to pass it then. The bill was read, 
the substance being as stated above, referring alone to revision 
by the Supreme Court of judgments against Revenue officers. 

The further proceedings from this point to the end, as set 
out in the Globe, are as follows : 

"Mr. Schenck : I desire to make a word or two of explana- 
tion which I think will be perfectly satisfactory. As the law 
now stands, these appeals or writs of error can be taken in 
any case where one of the officers of the customs is concerned. 
But by some inadvertence of the law-making power, that can- 
not be done in the case of an internal revenue officer. This 
bill proposes to put those officers on the same footing in that 
respect; that is all there is in it. I hope there will be no objec- 
tion to its consideration at this time." 

"Mr. Stevens (of Pennsylvania) objected, but subsequently 
withdrew his objection. 

"No further objection being made, the bill was taken up. 

"Mr. Schenck : I suppose I need not repeat the explana- 



Repeal of the Law as to Appeals to the Supreme Court 213 

tion of this bill which I made a few minutes since. The whole 
effect of it is to place officers of internal revenue on the same 
footing with officers of customs. 

"Mr. Wilson (of Iowa) : Will the gentleman from Ohio 
(Mr. Schenck) yield to me [Mr. Schenck had the floor] to 
offer an amendment to this bill ? 

"Mr. Schenck : I will hear the amendment. 

"Mr. Wilson (of Iowa) : I desire to amend the bill by 
adding to it the following : 

"Section 2. And be it further enacted, That so much of 
the act of February 5, 1867, entitled 'An act to amend an Act 
to Establish the Judicial Courts of the United States, approved 
September 24th, 1789,' as authorizes an appeal from the judg- 
ment of a Circuit Court of the United States to the Supreme 
Court of the United States, or the exercise of any such juris- 
diction by said Supreme Court on appeals which have been or 
may hereafter be taken, be, and the same is hereby, repealed. 

"Mr. Schenck : I am willing to have the amendment re- 
ceived, and now I call the previous question on the bill and 
amendment. The previous question was seconded and the 
main question ordered. The amendment of Mr. Wilson of 
Iowa was agreed to. The bill, as amended, was then read the 
third time and passed. 

"Mr. Schenck moved to reconsider the vote by which the 
bill was passed ; and also moved that the motion to reconsider 
be laid on the table. The latter motion was agreed to." x 

The above is the whole record on this subject. The du- 
plicity and artifice by which the passage of this bill, with the 
amendment, was effected is fitly consonant with the purpose of 
its enactment, which was to take from the Supreme Court its 
jurisdiction to decide a case that had already been argued be- 
fore and was then under advisement by that tribunal. This 
case involved the destinies of the people of ten States; and the 
belief that its decision, if permitted, would vindicate the con- 
stitutional rights of that people and save them from the con- 
sequences of military government was the motive for the 
artifice. The case had been heard ; it was before the Judges 
under advisement. Its decision might be, and was likely to be, 
made in a few days. To introduce and carry a bill through all 

1 Globe, 2d session, 40th Congress, pp. 1859-60. 



214 The Political History of Slavery in the United States 

its legislative stages to a law before the decision was made 
would probably be impossible. At all events, it was impossible 
to accomplish this without the true character of the bill being 
known. So it was resolved to resort to artifice and deception 
to accomplish a purpose that was even more criminal than the 
means that was employed to obtain it. That the whole pro- 
ceeding as above quoted from the Congressional Globe was 
but the acting out in the House of a scheme carefully prear- 
ranged in caucus cannot be doubted. Time was pressing ; the 
McCardle case had just been argued and was in the consulta- 
tion room. It was essential that the deprivation of jurisdiction 
of the court should be by amendment to a bill that had already 
reached the stage where it could be put on final passage. Only 
the unanimous consent of the House was necessary. This 
could only be obtained by calling up a bill so eminently fair, 
just, and necessary as to command the assent of all. This 
unanimous consent was obtained for the consideration of this 
proper and necessary bill by a simple explanation of its char- 
acter, coupled with the avowal on the part of Mr. Schenck, 
who had it in charge, of a wish to pass now, at that time, the 
bill as thus explained. There was not a whisper of a sugges- 
tion that anything else than its passage as explained was de- 
sired or expected. A sham opposition was made to the taking 
up of the bill by a member, Mr. Stevens, whose whole record 
in the House for years had shown that he would stop at noth- 
ing that could humiliate the Southern people, or that could 
degrade the Supreme Court itself. He was the leader of the 
majority. No legislation affecting the welfare of the Southern 
people had passed or could pass without his scrutiny or even 
his approval. His objection, therefore, was an assurance at 
least to the members of the House not in the secret that the 
taking up of the bill did not mean that legislation was con- 
templated that would be adverse to the Southern people or 
degrading to the court. His objection, having served this 
purpose, was withdrawn. 

The part played by Mr. Schenck was equally the part of 
artifice and deception. He admitted some days afterward in 
debate that, while he had not heard the amendment of Mr. 
Wilson read, he was cognizant of its meaning and effect. Yet 
when Mr. Wilson asked his permission to offer it, Mr. Schenck 
declined until he could hear it read, thereby affirming in the 



Repeal of the Law as to Appeals to the Supreme Court 215 

strongest manner to the House his ignorance of its contents, 
and driving from the minds of the suspicious all idea that the 
amendment was offered as the result of prearrangement or 
collusion. But not content with this, he retained the floor until 
after the reading of the amendment, the effect of which neither 
he himself nor anybody else could understand without a ref- 
erence to the statute, a part of which was repealed by it. He, 
then, immediately upon the enunciation of the last word of the 
amendment by the reading clerk, assented to its reception, and 
in the same moment called the previous question, which cut 
off all debate and all inquiry into the signification of the mo- 
mentous legislation that he was causing to be enacted. The 
previous question was seconded by his party friends, the 
amendment was adopted, and the bill as amended, without 
further reading, was passed. 

But the effect of all this artifice and deception would have 
been lost if time had been left for examination and reconsid- 
eration. So, immediately on the passage of the bill, Mr. 
Schenck moved a reconsideration, and in the same breath 
moved to lay that motion on the table. This last motion was 
instantly adopted, and thus all further parliamentary inquiry 
into the bill was closed out. 

This extraordinary performance, however, was likely to 
excite attention and inquiry into the nature of the amend- 
ment. So it was determined that no time for this inquiry 
should be allowed to elapse before final action on the amend- 
ment in the Senate. So the bill was immediately sent to the 
Senate. The Senate was soon in executive session, wherein 
no outsider is allowed to intrude. It was engaged in one of 
those proceedings that it has determined are so solemn and 
serious and of such importance to the people that no profane 
eyes are allowed to witness them, and no profane ear is per- 
mitted to listen to them. Yet haste was so important, — lest 
before action on the bill by that body the true meaning of 
the amendment should be discovered, 1 — that after the Senate 
went into executive session legislative session was resumed 
before its executive business was concluded. 2 That this was 

1 The clerk of the House reported the bill as amended to that body 
in secret session. 

2 A report of that character is always made by a mere recital of 
the fact that the House has passed the bill with an amendment. The 



21 6 The Political History of Slavery in the United States 

done for the sole purpose of considering this bill and amend- 
ment is evident from the fact that as soon as the doors were 
opened the President pro tempore of the Senate laid before 
that body the bill as amended, and as soon as its consideration 
was over, the Senate resumed its executive session. 

After the amendment was read the following proceedings 
took place, as is shown by the Congressional Globe: 

"Mr. Buckalew: I observe that is a very important 
amendment. I do not know what the effect is. Before vot- 
ing on it I should like to have some explanation. I observed 
that the Senator from Oregon [Mr. Williams] rose. I sup- 
posed with the intention of explaining what the amendment 
was. It seems to take away the jurisdiction of the Supreme 
Court in a certain class of cases. 

"Mr. Williams: The amendment is one that has been 
adopted by the House of Representatives and explains itself. 
It provides in regard to a particular jurisdiction conferred by 
an Act passed in 1867, that so much of that act as con- 
fers that jurisdiction shall be repealed. It leaves the law of 
1789 in full force and effect. 

"Mr. Buckalew: I ask for the reading of it again. 

"The Secretary read the amendment. 

"Mr. Buckalew: As we have no leisure now to refer to 
that particular law, I think the Senator from Oregon ought 
to explain to us in what respect the Act of 1867 changed the 
former law; what additional jurisdiction it conferred, and 
what are the reasons now for withdrawing from the Supreme 
Court a jurisdiction which was, or may have been, conferred 
by the latter statute. The subject has not been referred to any 
committee; it comes to us as an amendment made by the 
House of Representatives. I move to postpone the considera- 
tion of the subject until to-morrow. At any rate I should 
like to have time to read the law which it is proposed to 
repeal. 

"The motion to postpone was not agreed to. 



report gives no notice to the Senate of the character of the amend- 
ment. In such cases where such reports are made to the Senate in 
secret session the practice is to hear the report made by the clerk of 
the House and on his retirement, which always is immediate, the 
Senate resumes its executive business. 



Repeal of the Law as to Appeals to the Supreme Court 217 

"The President pro tempore: The question is on the 
amendment. 

"Mr. Buckalew : I ask for the yeas and nays. 

"The yeas and nays were ordered, and being taken re- 
sulted : yeas 32, nays 6." 

This is the whole record except the recording of the names 
on the yea and nay vote. 

The Senate then immediately went again into executive 
session. Those proceedings in both Houses took place on 
March 12, 1868, and, looking from the record that contained 
all that was said and done, could not have occupied as much 
as ten minutes in both Houses. 

It will be seen that the same tactics prevailed in the 
Senate that effected the passage of the bill in the House. 
Artifice and disingenuousness were practised to conceal the 
true character of the amendment in both Houses. In the 
Senate there was a direct appeal made by Mr. Buckalew for 
an explanation of the character and the force of the bill, 
an explanation of particular reasons for taking away the 
jurisdiction, and of the character of the jurisdiction to be 
destroyed. And there was a refusal to make any explana- 
tion at all. There was also an appeal made for postpone- 
ment for a single day in order that he might examine for 
himself the amendment, which he had in vain asked the 
Senator in charge of the bill to explain. This was denied. 
An appeal was then made for time to get the statute and 
read it, and this was not granted. It will be observed that 
this appeal for information and explanation was not sympa- 
thized in by any of the Republican Senators. Every one of 
them was prepared to vote for a bill, without inquiry into its 
character and without information as to its meaning, unless, 
as is certain, this material amendment had been considered 
by them outside of the Senate, and its offering was the result 
of a prearranged scheme for the enactment of a law of the 
most important character without allowing its meaning and 
effect to be exposed to the Senate, or rather to the members 
of the opposition. 

In this way and by these means, disreputable in the high- 
est degree, was the Supreme Court deprived of its jurisdic- 
tion, and the decision of the most momentous constitutional 



21 8 The Political History of Slavery in the United States 

question ever submitted to a court was withdrawn from the 
tribunal appointed by the Constitution for its settlement. 

These proceedings, with the attendant consequences, con- 
stitute a chapter in the history of the world that must arrest 
the attention of mankind. 

In the great republic in the New World had grown up 
institutions framed by the liberty-loving Anglo-Saxon race 
to guarantee personal liberty, the free exercise of political 
and civil rights, "to insure domestic tranquillity and to pro- 
vide for the common defense, promote the general welfare 
and to secure the blessings of liberty," to that race and its 
posterity forever. This Government had been framed and 
administered by that race through a written Constitution that 
had been recognized as the supreme law of the land. These 
institutions had been so organized by the aptitude and genius 
of that race for self-government that checks and balances, — 
equipoise of power, — were provided so as to insure minori- 
ties against oppression and ruin and hold majorities animated 
by passion and inflamed with the possession of undisputed 
powers within the limits of the great charter, the Constitu- 
tion. Among these checks, and one of the most important 
and essential, was the Supreme Court of the United States, 
which had been made the final arbiter of the powers of the 
Government. The Court was provided for in the Constitu- 
tion itself, and was, therefore, as much an essential organism 
of the Federal Government as Congress or the Executive. It 
was the head and the director and supervisor of the Judicial 
Department, which was itself a co-ordinate Department of the 
Government. It could not be destroyed except by a destruc- 
tion of the Constitution itself. It could not be crippled or 
maimed in the exercise of its high functions of constitutional 
arbitrament in the last resort, but by a maiming and disfigur- 
ing of the scheme of the Constitution itself. 

The Court was venerable and venerated both because of 
the men that then constituted its membership and because of 
the long line of illustrious judges that had preceded them. 
Here were ten millions of freemen of the Anglo-Saxon race 
that had framed the Constitution, — the countrymen and kins- 
men of him who had led the armies of the Confederacy in 
its infancy and weakness through the struggle for independ- 
ence, — the countrymen and kinsmen of Mason, Jefferson, 



Repeal of the Law as to Appeals to the Supreme Court 219 

Madison, Marshall, Clay, and Jackson, and of a long list of 
illustrious warriors and statesmen who had rendered the 
greatest services to the whole country ; these millions, through 
the appellant, were suitors before this august tribunal plead- 
ing for a share in that constitutional liberty that their fathers 
had established. These millions were the subjects of mili- 
tary rule in time of peace; they were denied the great writ 
of habeas corpus and the right of trial by jury, this denial 
being the appointed agency of forcing them to consent to 
such changes in the Constitution as were designed for their 
ruin and their humiliation. These millions had, in pursuance 
of what they believed to be the inalienable rights of freemen, 
sought safety outside of the Union. Their success had been 
prevented by irresistible force, wielded and applied under a 
solemn declaration of the Congress that the war on them 
was waged not for oppression or subjugation, or for the 
overthrow of their established institutions, "but to defend 
and maintain the supremacy of the Constitution of the United 
States and to preserve the Union with all the dignity, equal- 
ity, and rights of the several States unimpaired." They now 
appealed to this great court for the supremacy of the Consti- 
tution and for the unimpaired equality and rights of the 
States of which they were citizens. 

This people had not always conceded that this Court was 
the final judge, as against the States, of constitutional ques- 
tions, and in this view many of the Northern people had at 
one time concurred. They had leaned to the view of Mr. 
Jefferson, that the Constitution was a compact between the 
States, and that in all cases, as to the extent of the powers of 
the States as affected by the grant of power to the Federal 
Government, each State was the rightful judge for itself. 
On this theory they had acted in seceding, and on it they had 
been vanquished. On the other hand, those who then con- 
trolled the Government denied this State authority to judge 
of infractions of the Constitution, and asserted that the Su- 
preme Court was the final arbiter. That had been the view 
of the victorious section. Yet now the vanquished, as a ne- 
cessity of their defeat, relinquished their former opinions, 
assented to the view of the victor, and appealed to the tri- 
bunal that was asserted by their late antagonists to be legiti- 
mate. This tribunal was an established organism of the 



220 The Political History of Slavery in the United States 

Government of the United States. Every member of it had 
adhered to that Government in the civil war just ended. Five 
of the eight Judges belonged to the political party of the ma- 
jority in Congress, and they all were citizens and residents 
of that section that had triumphed, and they all had con- 
curred in the judgments of the Court that held that the war 
was constitutional and legitimate on the part of the United 
States. Not one of the Judges was from the Southern States, 
nor had any of them shown the slightest sympathy for the 
cause of those States. So if this great Court had prejudices, 
they were not in favor of the South. Besides this, it would 
have required the concurrence of five of the eight Judges to 
reverse the judgment under review and to establish the con- 
stitutional rights claimed by the South. The question in- 
volved grew out of the late war; the Judges were part and 
parcel of the victor, and the rights of the vanquished were at 
stake. 

Yet such are the changes produced by revolutions in hu- 
man affairs that the vanquished South, bereft of all other 
hope, and yielding to an inexorable necessity, sought protec- 
tion for its rights as freemen under the Constitution from 
this great tribunal which, in the days of its power and equal- 
ity in the Union, it had refused as the final arbiter; and the 
North, flushed with victory and inflamed with passion and 
revenge, now took away from the tribunal the jurisdiction 
that had been accorded to it. Men's passions were substituted 
for the Constitution. The policies of statesmen caused them 
to refuse obedience to the Constitution, to secure the suprem- 
acy of which they had made war. The South was not al- 
lowed to obey the very Constitution in the name of which its 
people had been vanquished. 



CHAPTER X 

PRESIDENTIAL ELECTION OF 1 868 

All the reconstructed States having been admitted to rep- 
resentation in the House, and all but Georgia having been 
admitted to representation in the Senate, there were but three 
of the Southern States, — Virginia, Mississippi, and Texas, — 
remaining wholly unrepresented. 

We recur now to the Presidential election of that year. 
We recall the position of the Republican National Conven- 
tion held in May, as expressed in the resolution hereinbefore 
quoted, at which it was announced that while Negro suffrage 
was to be inflicted on the South, yet the pledge of the party 
was given that each Northern State should retain its con- 
ceded power over suffrage within its own borders. 

In pursuance of this policy of leaving the Northern States 
their full power over the elective franchise, while imposing 
Negro suffrage on the South, Congress had, — in July, 1868, 
as we have seen, — resorted to the unconstitutional expedient 
of imposing the fundamental condition in the acts admitting 
the reconstructed States to representation in Congress, where- 
by it was attempted to make Negro suffrage in those States 
irrevocable. Some reliance, it is true, was placed on the 
constitutional validity of these conditions, yet, as we have 
seen, many of the ablest Senators of the majority denied this, 
and the condition in the case of Arkansas, — that being the 
initial case, — failed to be stricken out by a majority of one 
vote only. The main reliance, however, was on the impossi- 
bility of recalling the right when once granted. This view 
was expressed with great force by Mr. Edmunds in a subse- 
quent debate when opposing the Fifteenth Amendment. 

He said: 'Tn all the Southern States .... they [the 
Negroes] have acquired a right to vote under local Constitu- 
tions, to say nothing of the Fourteenth article ; and they will 
never lose it except through a convulsion as great as any we 

221 



222 The Political History of Slavery in the United States 

have lived to witness. . . . These people, therefore, in these 
ten States will maintain the practical exercise of the right to 
which they have been recently admitted; and there is no 
danger whatever except through the convulsion to which I 
have referred, and against that you have the constitutional 
power of the whole nation, which you are bound to exer- 
cise. x 

Mr. Blaine gave expression to the same view on Decem- 
ber 10, 1868, when he said, referring to Negro suffrage in 
the South : "It is too late to discuss Negro suffrage, for, 
haying been granted, it is impossible to recall it. . . . It is 
demonstrably impracticable to withhold suffrage from the 
Southern Negroes, now that they have exercised it, without 
involving consequences which would destroy all security for 
life or property in that section for generations to come." 2 

The Democratic party in their National Convention on 
July 4, 1868, condemned in the strongest language the recon- 
struction laws as unconstitutional, revolutionary, and void. 

It thus appears that the issue between the two parties in 
that canvass was on the reconstruction measures, with Negro 
suffrage in the South, the Republican party distinctly pledg- 
ing themselves against any amendment to the Constitution 
that might affect the control of the Northern States over the 
subject for themselves. 

The result of the election was 214 electoral votes for Gen- 
eral Grant and 80 for Governor Seymour. Of the Northern 
States, New York, New Jersey, and Oregon, — representing 
43 votes, — had voted for Seymour. Of the Southern recon- 
structed States, two, — Georgia and Louisiana, — had voted 
for Seymour. If there had been no reconstruction, the vote 
of the Southern States would all probably have been given 
for Seymour, and he would have been elected. 

So after the election, and after the securing of a large 
majority in the Forty-first Congress, and after the legisla- 
tures of twenty-five States had been carried on the pledge as 
to suffrage contained in the resolution of the Republican Na- 
tional Convention before noticed, new considerations pre- 
sented themselves to the minds of the Republican statesmen 
of the North. 

1 Congressional Globe, Third Session, 40th Congress, p. 1001. 
3 Ibid., p. 58. 



Presidential Election of 1868 223 

Then for the first time began to be considered seriously 
by the great body of these leaders the question of imposing 
Negro suffrage on the Northern States as well as on the 
South. A pledge, it is true, had been given to the country 
not to do this, yet the exigencies of the party were such that 
it appeared evident that something must be done to secure to 
the Republican party control of the country. Even the popu- 
larity of General Grant had not been able to save three of 
the Northern States. It was feared that the Negro vote 
would be necessary to turn the scale in their favor in many 
of the Northern States. This fear was scarcely concealed by 
Mr. Boutwell on the 23d of January, 1869, in his speech in 
advocacy of a bill to establish Negro suffrage by Act of Con- 
gress throughout the Union. In this speech he alluded to 
seventeen hundred Negro male adults of Connecticut, ten 
thousand in New York, five thousand in New Jersey, four- 
teen thousand in Pennsylvania, seven thousand in Ohio, 
twenty-four thousand in Missouri, four thousand in Dela- 
ware, thirty-five thousand in Maryland, who would rally to 
the support of the Fifteenth Amendment; and he asked: 
"Are we to decline the services of one hundred and fifty 
thousand men who are ready to do battle for us at the ballot 
box in favor of human rights?" 1 

The members of the Fortieth Congress had shown an espe- 
cial pliancy to the demands of party leaders. They had con- 
curred in all the most radical measures of reconstruction. 
The party had recently been sustained at the polls by the 
election of General Grant. It had elected a large majority in 
the House of Representatives, and it had nearly all the Sen- 
ate. There were, too, twenty-five Legislatures elected, which 
were supposed to be obedient to their will, notwithstanding 
the platform before alluded to. Only three others were 
needed to insure the necessary three-fourths of the States to 
secure the ratification of an amendment imposing Negro suf- 
frage on all the States. "We have then to secure three other 
States," said Mr. Boutwell, "in support of the proposition. 
We are to enter upon that work with a certain amount 
of prejudice against and traditionary opposition to Negro suf- 
frage." 2 

1 Congressional Globe, 3d Session, 40th Congress, p. 561. 

2 Ibid., p. 560. 



224 The Political History of Slavery in the United States 

The fear, too, was felt that if Negro suffrage were not 
imposed then by constitutional amendment, it could never be 
done. Mr. Bingham, urging concurrence in the Senate 
amendment, said : "You may never have another oppor- 
tunity of presenting this question [of Negro suffrage] to the 
consideration of the American people." 1 

Mr. Butler said, "If we do not pass this now [the Fif- 
teenth Amendment] as we receive it from the Senate, it will 
be too late forever to pass it." 2 

Mr. Frelinghuysen, supporting the statement of Mr. 
Stewart "that there was no time for further action," said : 
". . . . and no chance at the next session .... because 
there will not be a two-thirds vote there for it," to which Mr. 
Stewart assented. 3 

Mr. Wilson, of Massachusetts, said: "We have twenty- 
five State Legislatures in the hands of our friends," and he 
advised that they "take the responsibility of submitting to 
the Legislatures a proposition to amend the Constitution so 
as to secure to the colored citizens of the United States the 
right to vote and to be voted for." 4 

So, under the pressure of the emergency that "now or 
never" was the time to impose Negro suffrage, the proceed- 
ings following were had on this momentous subject, in ex- 
press violation of the platform on which the election was 
carried and the State Legislatures secured in twenty-five 
States. As to the three remaining States needed, there were 
Virginia, Texas, and Mississippi still under process of recon- 
struction, and it was deemed to be in the power of Congress 
to force them to agree to the Fifteenth Amendment, as was 
actually done at the next session by the passage of a bill, — 
Act of April 10, 1869, — making it a prerequisite to their ad- 
mission to representation that they should ratify that amend- 
ment. 5 

On the third day of the first session of the Fortieth Con- 
gress, — that is, on March 7, 1867, — Mr. Henderson, of Mis- 
souri, had introduced Senate Joint Resolution No. 8, propos- 

1 Congressional Globe, 3d Session, 40th Congress, p. 1225. 

2 Ibid., p. 1426. 
8 Ibid., p. 1629. 

4 Ibid., p. 1626. 

5 16 U. S. Statutes at Large, Chap. XVII, pp. 40-41. 



Presidential Election of 1868 225 

ing an amendment to the Constitution of the United States 
in the following words : 

"That no State shall deny or abridge the right of its citi- 
zens to vote, or hold office on account of race, color, or pre- 
vious condition." 

There was added a section giving power to Congress to 
enforce this by appropriate legislation. 

On its introduction the resolution was referred to the Com- 
mittee on the Judiciary. In that committee it slept from 
March 7, 1867, to January 15, 1869, two years, lacking a few 
weeks. During all this interval all the reconstruction meas- 
ures, except the first, had been passed. Reconstruction had 
actually taken place in all the Southern States except three, 
the Presidential election had taken place, and the Fourteenth 
Amendment had become, by the declaration of Congress, a 
part of the Constitution. The resolution's slumber had not 
been disturbed by all these events, but seemed rather to the 
superficial observer to have been made so profound as to pre- 
vent all chance of resurrection by the resolutions of the Re- 
publican National Convention, which in express words con- 
demned the proposition contained in it. 

On the last-named day, however, it was suddenly resur- 
rected into life and activity. Mr. Stewart then reported it 
back to the Senate amended so as to read as follows : 

"The right of citizens of the United States to vote and 
hold office shall not be denied or abridged by the United States, 
or any State, on account of race, color, or previous condition 
of servitude." 

This was exactly the Fifteenth Amendment as it finally 
passed, with the important exception that the words "and to 
hold office" were stricken out, and they are, therefore, not a 
part of the Constitution of the United States. 

The resolution as reported embraced the right to hold 
office. 

Mr. Williams, of Oregon, moved a substitute that gave Con- 
gress the power "to abolish or modify the right to vote or hold 
office prescribed by the Constitution or laws of any State." 1 
His object manifestly was to secure immunity to the Northern 
States to the inflexible rule prescribed by the proposed amend- 
ment, and to give the power to Congress to deal with the 
1 Congressional Globe, 3d Session, 40th Congress, p. 491. 



226 The Political History of Slavery in the United States 

Southern States on this subject as might be demanded by the 
exigencies of party. 

Mr. Dixon, of Connecticut, moved to amend the resolu- 
tion of submission by providing that the ratification should be 
by conventions called in the several States. 

Mr. Davis, of Kentucky, moved an amendment requiring 
this and all other propositions to amend the Constitution to 
be submitted to a direct vote of the people of the United 
States. 1 

Other propositions to amend having reference to the mode 
of conducting Presidential elections were offered. 

Mr. Hendricks, in supporting the proposition of Mr. Dixon 
to refer the question of ratification to conventions there- 
after to be called instead of to the State Legislatures, called 
attention to the elections, Presidential and Congressional, of 
the preceding fall, and to the resolution of the Chicago con- 
vention hereinbefore quoted, announcing that in the North 
this was a matter for State action and of State jurisdiction 
alone. He insisted that this resolution was a pledge made by 
the Republican party against the amendment, and he called 
upon the Republican Senators "to stand by the pledge of faith 
which your party made to the people." 

He said that he had heard much about the logic of events 
and had heard inconsistencies in political action and conduct 
and faith apologized for on that ground. "But since the 20th 
of May last (the date of the Republican National Conven- 
tion) up to the present hour what events have occurred which 
change this question? The Negroes were free then — as free 
as now; your understanding of the subject was as ample then 
as now. . . . You propose to say to the people of Indiana, 
'It is not properly your right to control suffrage; it does not 
belong to you ; our Chicago platform was false on that sub- 
ject. . . .' Men may be untrue to their political faith else- 
where where offices are to be obtained, where political power 
is to be held, but in the Senate of the United States may I not 
appeal to the representatives of great States to stand by 
pledged and plighted faith? ... I almost understood the 
argument of the Senator from Massachusetts to be an admis- 
sion that the people were against it. If the people are against 
it, what right have you to change the Government? Is it not 

1 Congressional Globe, 3d Session, 40th Congress, p. 671. 



Presidential Election of 1868 227 

the Government of the people, made by them and for them- 
selves?" 1 

Mr. Wilson, of Massachusetts, to whom reference was 
made by Mr. Hendricks, had just addressed the Senate in op- 
position to Mr. Dixon's amendment. In that speech he had 
said in reply to Mr. Davis, of Kentucky: "He knows and I 
know that this whole struggle in this country to give equal 
rights and equal privileges to all citizens of the United States 
has been an unpopular one .... it has cost the party with 
which I act a quarter of a million of votes. There is not to- 
day a square mile in the United States where the advocacy of 
the equal rights and privileges of those colored men has not 
been in the past, and is not now, unpopular." 2 

Mr. Dixon, arguing in favor of his proposition to submit 
the amendment to conventions, said : "It is certainly impor- 
tant that the people should have an opportunity to express 
their sentiments on this question. In the State of Connecti- 
cut our unfortunate, I may say our rotten, borough system 
of representation gives the city of New Haven, with fifty 
thousand inhabitants and nearly ten thousand voters, the same 
representation in the Legislature which the smallest town in 
the State has, with only one hundred and fifty voters. That 
is the mode of representation in the State of Connecticut to- 
day. The City of Hartford and the City of New Haven, 
with nearly twenty thousand voters between them, and pay- 
ing more than one-fifth of the whole State taxes, ... if I 
am not mistaken, have only four representatives in the Legis- 
lature." 3 

Mr. Dixon made another speech in favor of his proposi- 
tion to refer the question to the people, and against the pro- 
posed amendment to the Constitution. He urged the Senate 
to lift this great question out of the mere region of party 
politics and elevate it into a purer and higher atmos- 
phere. 

He insisted that it was something more than merely con- 
ferring suffrage on Negroes; that it was crippling the States, 
depriving them of a necessary power over suffrage essential 
to their safety. He showed by reference to the proceedings 

1 Congressional Globe, 3d Session, 40th Congress, p. 673. 

2 Ibid., p. 672. 
*Ibid., p. 543- 



228 The Political History of Slavery in the United States 

of the Constitutional Convention called to frame the Consti- 
tution in 1787 that it was deemed by that body an essential 
idea of our institutions that the right to regulate and control 
suffrage should remain with the State. He referred to the 
Federalist to sustain the same view. 

He contended that a submission of the amendment to 
Legislatures already chosen would be no real submission, as 
these Legislatures had been elected when no such question 
was before the people. In fact he argued that the resolution 
of the Chicago convention had had the effect of withdraw- 
ing the question from the people. 

On this point he said : 

"In the discussions before the people [during the Presi- 
dential canvass] in all the Northern States the ground was 
taken by all the orators of the Republican party, almost with- 
out exception, that the question of suffrage was to be left 
to the States for their separate action. The honorable Sena- 
tor from Ohio (Mr. Sherman), who had the kindness to send 
me his able speech; the honorable Senator from Missouri 
(Mr. Henderson), who did me the same favor, and other 
Senators, with the exception of the Senator from Massachu- 
setts (Mr. Sumner), every one of their great orators before 
the people in that exciting canvass, took the ground that this 
question was to be left to the States for their separate State 
action, and if any constitutional amendment was to be made, 
it was to be an amendment to the State Constitutions made 
by the people of the respective States. . . . 

"Therefore, I say that not only from the importance of 
this question as subverting the character of the Government, 
but also from the pledged faith of the great Republican party, 
acting in solemn council, declaring and promulgating its prin- 
ciples, stating to the people what would be its action in case 
it should receive a renewal of their confidence; in view of 
all this, I say that this Republican party is bound in solemn 
honor, at least, to submit this question, in fact, to the people, 
to give them an opportunity to be heard upon the subject . . . 

"I say, then, in solemn honor you are bound, and you 
cannot, as men of honor and of character, refuse to submit 
the question to the actual, genuine sense of the people, nor 
can you hide yourselves safely and honorably behind techni- 
calities, and say that when the question is submitted to the 



Presidential Election of 1868 229 

Legislatures already chosen it is presumed to be submitted 
to the people." 1 

It would be well to recall the position of the Senate as 
interpreted by their own vote, and by the speeches of Mr. 
Sherman and Mr. Howard, in March, 1867, the beginning 
of that Congress, in reference to new terms of reconstruc- 
tion. On an attempt of Mr. Sumner to add to these terms, 
which embraced only the ratification of the Fourteenth 
Amendment, and the formation of State Constitutions, al- 
lowing Negro suffrage, Mr. Sherman and Mr. Howard had 
denounced the proposition as a breach of faith and honor, 
and that good faith required that not one "jot or tittle" 
should be added. 

We turn now our attention for a short time to the action 
of the House. 

On December 7, 1868, Mr. Kelley, of Pennsylvania, of- 
fered a resolution to amend the Constitution by adding an 
article that would read as follows : 

"No State shall deny to, or exclude from, the exercise 
of any of the rights and privileges of an elector any citizen 
of the United States by reason of race or color." 2 

On January 11, 1869, Mr. Boutwell, from the Committee 
on the Judiciary, reported the resolution back in this form : 

"The right of any citizen of the United States to vote 
shall not be denied or abridged by the United States, or any 
State, by reason of race, color, or previous condition of sla- 
very of any citizen or class of citizens of the United States." 

After this was a section giving power to enforce this by 
appropriate legislation. 

On the same day there was a motion by Mr. Boutwell to 
recommit the resolution to the Committee on the Judiciary, 
which was carried, and immediately thereon a motion to re- 
consider was made, which was left undisposed of. 3 

At the same time Mr. Boutwell reported from the same 
committee a bill that secured Negro suffrage in elections of 
Members of Congress and elections of Presidents and in 
elections of members of State Legislature directly, without 

1 Congressional Globe, January 29, 1869, 3d Session, 40th Con- 
gress, p. 707. 

2 Congressional Globe, 3d Session, 40th Congress, p. 9. 
8 Ibid., pp. 285-6. 



230 The Political History of Slavery in the United States 

any amendment of the Constitution, and the same proceed- 
ings were had on that bill as were had on the resolution of 
amendment, above explained. 1 

On January 23, 1869, Mr. Boutwell called up this bill 
and made an elaborate speech in favor of its passage. He 
insisted on its constitutionality. Some extracts have already 
been made from this speech. One or two others only are 
needed. 

Mr. Boutwell said : "Our object is to secure universal 
suffrage to all adult male citizens of the country. The power 
is in our hands, first as a Congress, secondly, as a party re- 
sponsible for what this Congress does. If we submit a con- 
stitutional amendment alone, we in a certain sense admit that 
the power for which I am now contending is wanting. More 
than that, there are but twenty-five States to which we at 
the present time could look for the ratification of this amend- 
ment [to the Constitution]. We have then to secure three 
other States in support of the proposition. We are to enter 
upon that work with a certain amount of prejudice against 
and traditionary opposition to Negro suffrage." 

Continuing his speech, Mr. Boutwell stated that he had 
no doubt that nine-tenths of the Republican party were in fa- 
vor of manhood suffrage, but there were one-tenth against it, 
and they constituted the great obstacle to perfecting this be- 
nign measure. "For one, I am in favor of taking the re- 
sponsibility of the position we occupy. We are responsible 
for universal suffrage as one of the crowning measures of an 
administration of eight years' duration, to be continued for 
four years by the judgment of the people already pro- 
nounced." 

And, exhibiting in the strongest manner his contempt 
for the wishes and interests of the people of the United 
States as a mass composed of all political parties, he pro- 
ceeded : 

"The great majority of the people, — and in this connec- 
tion I will say that by 'the people' I mean those who on the 
3d of November last supported General Grant for the Presi- 
dency, — the great majority of them expect of us the con- 
summation of this plan." He then proceeded to explain that, 
by the passage of the bill, enough Negroes would be added 

1 Congressional Globe, 3d Session, 40th Congress, pp. 285-6. 



Presidential Election of 1868 231 

to the electors in certain States to assist materially in car- 
rying the amendment to the Constitution. 1 

Mr. Knott, of Kentucky, made a very able speech 
against the proposition. 2 

On January 30, the resolution submitting the amendment 
was passed, — ayes 150, nays 42 . 8 

The resolution went to the Senate and was referred to 
the Committee on the Judiciary, from which Mr. Stewart, 
on February 3, reported it amended by substituting for it 
the proposition theretofore reported from that committee to 
the Senate, which it will be remembered secured to Negroes 
the right "to hold office" as well as to vote. 4 

Among the speeches made in opposition to the amend- 
ment in the Senate, it is deemed proper to refer to and quote 
from that of Mr. Vickers, of Maryland, who, it will be seen, 
revived some unpleasant reminiscences of Senators, and at 
the same time contributed valuable information to the history 
of the Negro suffrage question. He quoted from a speech 
that had been made in the Senate by Mr. Stewart on De- 
cember 21, as follows: 

"The true question is, shall the General Government in- 
terfere with the right of suffrage in the States? When this 
is attempted, we are not only met by the prejudices, whether 
just or unjust, of a large majority of the white inhabitants 
of the United States, but by the conscientious opinions of 
the Chief Executive of the nation, sustained by many of the 
wisest and best statesmen and jurists of the country, that 
the Constitution has placed the question of suffrage exclu- 
sively within State jurisdiction. I do not propose to argue 
at length either the prejudices of the former or the constitu- 
tional objections of the latter. But we must remember that 
prejudice is often more powerful than reason, and that it 
often happens that the prejudice itself is founded in reason. 
If this is not a white man's Government, one thing is certain, 
that neither the black man nor the red man has ever reared 
such a government." 

Mr. Vickers quoted further from the same speech : 

1 Congressional Globe, 3d Session, 40th Congress, p. 560. 
'Ibid., p. 561. 
8 Ibid., p. 745. 
* Ibid., pp. 827-8. 



232 The Political History of Slavery in the United States 

"Now that these sacrifices have been made and the vic- 
tory won, are we not bound by every obligation which rever- 
ence for the dead, regard for the living, and fear of God can 
inspire, to preserve, not destroy, the Constitution and Union 
of these States? Thus far there are two plans presented to 
the country for the reorganization of the South. The one 
which finds favor in Congress, if we were to judge the sen- 
timent of that body from those who talk most, is to govern 
eleven States as conquered provinces by an exercise of power 
unwarranted by the Constitution, which must inevitably de- 
range, if not destroy, that charter of our liberties. This 
plan trusts all to force, nothing to conciliation; all to re- 
venge, nothing to charity. It treats with equal contempt the 
good opinion or hatred of seven million American citizens." x 

He quoted further from the same speech : 

"It may not be unjust for a people whose liberties can 
only be sustained by intelligence and virtue to pause and hesi- 
tate before they intrust those liberties in the hands of four 
million unfortunate persons, just emerged from the most 
degrading slavery, before they shall have had an oppor- 
tunity to learn the principles of that Government whose func- 
tions they are called upon to administer." 2 

Mr. Vickers quoted from Senator Wade, of Ohio, in a 
speech delivered in the Senate in March, 1861, in opposition 
to an amendment of the Constitution then proposed as a 
settlement of the sectional difficulties, as follows : 

"Mr. President, we must come back to the old ark of 
safety. We must stand upon the old Constitution; and upon 
the old, time-honored constructions of that instrument as 
understood by Marshall, by Story, and the great lights of 
jurisprudence that have investigated and settled almost every 
question that can possibly arise upon its construction. I 
observe the very moment you attempt to patch it up, the 
very moment you attempt to go counter to that, inevitable 
difficulties break in upon you. I do not want it amended; 
I see no defect in it; I am sworn to stand by it." 

He also quoted from a speech made in the Senate by 
Mr. Wade in i860, as follows: 

"There is in these United States a race of men who are 

1 Congressional Globe, 3d Session, 40th Congress, p. 906. 

2 Ibid. 



Presidential Election of 1868 233 

poor, weak, uninfluential, incapable of taking care of them- 
selves. I mean the free Negroes, who are despised by all, 
repudiated by all ; outcasts upon the face of the earth with- 
out any fault of theirs that I know of; but they are the 
victims of a deep-rooted prejudice; and I do not stand here 
to argue whether that prejudice be right or wrong. I know 
such to be the fact. It is there immovable. It is perfectly 
impossible that these two races can inhabit the same place 
and be prosperous and happy. I see that this species of 
population is just as abhorrent to the Southern States, and 
perhaps more so, than to the North; many of those States 
are now, as I think, passing most unjust laws to drive these 
men off or to subject them to slavery; they are flocking now 
into the free States and we have objections to them. Now 
the proposition is, that this great Government owes it to 
justice, owes it to those individuals, owes it to itself, and 
to the free white population of the nation, to provide a 
means whereby this class of unfortunate men may emigrate 
to some congenial clime where they may be maintained to 
the mutual benefit of all, both white and black. This will 
insure a separation of the races. Let them go into the 
tropics. There, I understand, are vast tracts of the most 
fertile and inviting lands in a climate perfectly congenial to 
that class of men, where the Negro will be predominant; 
where his nature seems to be improved, and all his faculties, 
both mental and physical, are fully developed, and where 
the white man degenerates in the same proportion as the 
black man prospers. Let them go there; let them be sepa- 
rated ; it is easy to do it." x 

Mr. Vickers in the same speech quoted from a speech 
made by Mr. Pomeroy, of Kansas, in the Senate in 1865, as 
follows : 

"For one, sir, I am for leaving this question of suffrage 
to the citizens of the States, and I claim it as their right to 
admit whoever they choose to the ballot box. I am not 
loyal enough myself to allow my own rights as a citizen of a 
State to be trampled upon in that way. I would not be dic- 
tated to as a citizen of a sovereign State by Congress or any 
other power as to what kind of citizens of my State should 
be allowed to vote. If they choose to let all the citizens, in- 

1 Congressional Globe, 3d Session, 40th Congress, p. 906. 



234 The Political History of Slavery in the United States 

eluding the women, vote, it is not a matter for Congress to 
interfere with. The citizens of a State are not confined to 
its male citizens, either white or black, and the right of 
voting does not follow the right of citizenship. The States 
have their own way about that. Some States let one class 
of persons vote and some another, and I want that course 
continued. 

"The people of my own State are supposed to be loyal; 
they are as radical as are the citizens of Massachusetts; but 
they are not loyal enough to allow Congress to dictate to them 
what kind of qualifications for voting they shall have." x 

The sentiments thus expressed at the beginning and at 
the close of the war by these distinguished Senators, who 
were in 1868, three years afterward, pressing Negro suf- 
frage on the South, were still respected by the Senate when 
they were to be applied to a foreign colored population and 
to the Northern States. Mr. Williams, of Oregon, moved 
to amend the resolution of amendment to the Constitution 
by inserting "natural born" before "citizens." 

He said if his amendment was adopted, California and 
Oregon would be enabled to exclude Chinese from voting 
and holding office; it would not affect Europeans. 

"I propose to leave it with the States to discriminate 
against foreigners on account of race or color, so that it 
may be enacted by the State of New York that Africans 
immigrating into the United States shall not hold office in 
that State ; thus discriminating against foreign-born persons 
of the African race on account of their color." 2 

After some conversational debate between Senators 
Trumbull and Fessenden, Mr. Williams said: "I am only 
anxious in all that I say or do in reference to this amend- 
ment to enable .... Congress or the States on the Pacific 
Coast, as they are the States directly interested, to prevent 
the thousands and perhaps millions of Chinese who may 
flow in upon that coast from taking possession of the politi- 
cal power of that portion of the Republic. That is all I 
desire to do." 3 

Mr. Morton sympathized with the views of the Sena- 
tors from the Pacific Coast. In advocating that the 

1 Congressional Globe, 3d Session, 40th Congress, p. 906. 

2 Ibid., p. 938. s Ibid., p. 939. 



Presidential Election of 1868 235 

amendment should be so framed as not to include Chinese, 
he said : "They can never mingle with us ; they never can 
be a part of the American people; they will have a civiliza- 
tion that will stand like a wall of iron over them and us, 
between their children and ours. I believe they will seize 
and hold power if it shall be placed within their hands, or 
within their reach, for their own protection ; and who can 
blame them?" 1 

Mr. Corbett, of Oregon, moved to amend by adding: 

"But Chinamen not born in the United States, and In- 
dians not taxed, shall not be deemed or made citizens." 2 

Mr. Corbett, in his speech in favor of his amendment, 
referred to the incapacity of Chinese for self-government, 
and argued strongly against giving them the right of suf- 
frage. 

He owned that he favored Negro suffrage in the South- 
ern States, but he could not see his way clear to impose it 
on the Northern States by constitutional amendment. He 
said the Fourteenth Amendment was preferable to the pres- 
ent amendment, and claimed that it was sufficient; and that 
the present proposition virtually contradicted several por- 
tions of the Fourteenth Amendment. He quoted a resolu- 
tion of the Republican State Convention of Oregon in 
March, 1868, favoring restoration of the Southern States 
on the basis of the Fourteenth Amendment. He also quoted 
the following resolution passed by that body: 

"Resolved, that under the Constitution the Federal Gov- 
ernment has no right to interfere with the elective franchise 
in any State having representation in Congress, and where 
civil government is not overthrown by rebellion." 3 

He then quoted the resolution of the Republican Na- 
tional Convention at Chicago, in May, 1868, that has been 
before copied, and declared that it was in accord with the 
above resolution of Oregon. He said he did not feel at lib- 
erty to depart from that doctrine and "to disregard the 
obligations we there pledged to the people of Oregon and 
the Pacific Coast, and violate that platform." 4 

1 Congressional Globe, 3d Session, 40th Congress, p. 1034, Feb- 
ruary 9, 1869. 

2 Congressional Globe, 3d Session, 40th Congress, p. 939. 

3 ibid. * Ibid. 



236 The Political History of Slavery in the United States 

Mr. Howard, of Michigan, spoke in favor of the Fif- 
teenth Amendment, and insisted that the resolution of the 
Republican National Convention did not contravene that po- 
sition. 

Mr. Hendricks criticized the position of Mr. Howard on 
this subject, insisting that the true meaning of the resolution 
of the Republican National Convention was a pledge by the 
Republican party to allow the power of the States over the 
subject to remain. He also stated that Mr. Howard, in order 
to get away from the plain language of the party, resorted 
to criticism on his own platform. 

Mr. Sumner : "May I remind the Senator that a con- 
spicuous leader of the party, who is now dead, made haste 
when that improvident resolution was put before the public 
to denounce it as foolish and utterly untenable? I refer to 
Thaddeus Stevens. He said that that position taken at Chi- 
cago was foolish and untenable. He wrote a letter within 
a week after that was published." 

Mr. Hendricks: "Was that letter published?" 

Mr. Sumner: "It was published and extensively circu- 
lated. I never had any hesitation in saying the same thing." 

Mr. Hendricks: "Then I understand that Mr. Stevens, 
to whom the Senator refers, and the Senator from Massa- 
chusetts himself, put this construction upon this clause, that 
it declares the control of suffrage properly as a political 
question, independently of constitutional provisions, to be- 
long to the States; and if that be the proper construction, 
then I say to the distinguished Senator from Massachusetts 
that his party now proposes to do that which it pledged to 
the people a year ago that it would not do." 1 

Mr. Sumner made no response to this. 

Mr. Hendricks, in further discussing the Fifteenth 
Amendment, claimed that the right of the States to regulate 
suffrage was of the very essence of the relations between 
them and the Federal Government, and that it could not 
safely be taken from them. He further contended that if 
Congress determined to assume this power, to initiate a 
change of the Constitution, it ought to be very clear that 
their doing so was for the public good. "I know there are 
very many distinguished men in the Republican party who 

1 Congressional Globe, 3d Session, 40th Congress, pp. 987-8. 



Presidential Election of 1868 237 

have recently expressed the opinion that universal suffrage 
would be an evil; that these colored people, just come out of 
a condition of slavery, were not qualified to exercise the 
suffrage for the good of the public." x 

Mr. Hendricks referred to the experiment of the South- 
ern States under the reconstruction laws of Congress, and 
declared that it did not furnish a very satisfactory test of 
the capacity of the Negro for self-government; the success 
of the Government in those States had not been such as to 
justify very high hopes; that he was not satisfied, as many 
of the Republicans recently were not satisfied, that it was 
wise to extend the suffrage to the colored people; if any 
State chose to do it of her own will, it was her right, and 
he made no war on that. "But," continued Mr. Hendricks, 
"I am not satisfied; I never have been satisfied that it is 
wise to make suffrage universal so as to include that race; 
and I think upon this subject there are some Senators in 
this hall who are going to vote for this amendment who 
agree with me. ... I do not believe that the Negro race 
and the white race can mingle in the exercise of political 
power and bring good results to society. We are of dif- 
ferent races. Men may argue about it as much as they 
please; we know there is in many respects a great differ- 
ence between the races. There is a difference not only in 
their physical appearance and conformation, but there is a 
difference morally and intellectually; and I do not be- 
lieve that the two races can mingle successfully in the man- 
agement of Government. I believe that it will bring strife 
and trouble to the country. That is my conviction upon the 
subject. I do not believe that they will add to the common 
intelligence of the country when we make them voters. . . . 
That race, in its whole history, has furnished no evidence 
of its capacity to lift itself up. It has never laid the founda- 
tion for its own civilization. Any elevation that we find in 
that race is when we find it coming in contact with the 
white race. The influence of the white race upon the col- 
ored man has carried him up somewhat in the scale of civi- 
lization, but, when dependent upon himself, he has never 
gone upward. I am willing that shall be tested by the his- 
tory and experience of two thousand years back. While 

1 Congressional Globe, 3d Session, 40th Congress, p. 989. 



238 The Political History of Slavery in the United States 

the tendency of the white race is upward, the tendency of 
the colored race is downward." 1 

Mr. Davis, of Kentucky, argued strongly that the Negro 
race was unfit for political power. 2 

Mr. Edmunds insisted that Negro suffrage was already 
secured in all the States by the Fourteenth Amendment to 
the Constitution, and asked, "Who is able to say where the 
twenty-eight or twenty-nine independent States are to be 
found who will agree to any further addition to that in- 
strument?" 3 

Mr. Edmunds, in opposing the Fifteenth Amendment as 
unnecessary, said : "In all the Southern States where the 
great body of this disfranchised class or race now are, — I 
mean disfranchised practically, — they have acquired a right 
to vote under local constitutions, to say nothing of the four- 
teenth article ; and they will never lose it except through a 
convulsion as great as any we have lived to witness. His- 
tory does not record an instance where any class or race, 
however inferior gentlemen may suppose them to be, how- 
ever ignorant they may be, have ever given up or lost politi- 
cal privileges they had once obtained, except through the 
convulsions of revolution and anarchy. These people, there- 
fore, in those ten States will maintain the practical exercise 
of the right to which they have recently been admitted, and 
there is no danger whatever, except through the convulsion 
to which I have referred, and against that you have the con- 
stitutional power of the whole nation which you are bound to 
exercise, that they will go backward [sic] . On the contrary, as 
they assist to mold the institutions their own institutions will 
assist to elevate them, as they have all other men who entered 
upon the race of civilized life. They will go forward if you 
let them alone, instead of going backward." 4 

Mr. Doolittle, in opposition to the Fifteenth Amend- 
ment, made a strong speech on the race question. He said : 
". . . . among the white men of sense in this country there 
is not one in ten who, if you will sit down by his side and 
get into his interior thoughts and conversation, will not tell 

1 Congressional Globe, 3d Session, 40th Congress, p. 989. 

2 Ibid., p. 996. 

3 Ibid., p. 1000. 
* Ibid., p. 1 00 1. 



Presidential Election of 1868 239 

you that, as a general rule, the Africans are incompetent to 
vote. We know it. Everybody knows it. 

"What is the occasion of that incompetency? It is not 
a matter of a day, nor a year, nor a generation. It is a mat* 
ter of six thousand years and the whole history of the race. 
Men speak of the question as a question of skin. I have 
heard my honorable friend from Massachusetts hour by 
hour denounce the oligarchy of the skin, as if the skin was 
not mentioned simply as one of the incidents of the race, 
to distinguish it from other races; whereas, everybody who 
knows anything on the subject knows, all natural philosophy 
teaches, all ethnologists, all historians, all men who know 
by actual experience anything of this race know that the skin 
is by no means the greatest distinction between the African 
and the white man." He alluded to other differences. He 
further said : 

"We often quote here the language of Jefferson declar- 
ing for equality of the rights of men. . . . But Jefferson 
also declares, with as much distinctness and with as much 
force as he declares the natural rights of men, that it is 
impossible for you to put these two races together and main- 
tain them upon a footing of equality side by side in the same 
Government. Your experience has demonstrated it. In 
the States in the South, you, sir [Mr. Welch, in the chair], 
know, and there is not a man in the Senate who does not 
know, that the irrepressible conflict of race, — not a conflict 
of arms, for the power of the Federal Government prevents 
that, but a conflict of race, irrepressible, constant, eternal, — 
is going on between the blacks and the whites, as it is going 
on between the whites and the Indians on the frontier. They 
may blind their eyes if they please to these facts, but they 
are as bright as the sunlight everywhere. Just so long as 
the effort is made to enforce an unnatural equality between 
the white race and an alien and inferior race, an exotic race 
which does not belong in the temperate zones of the earth, 
which has been brought here from the tropics where God 
planted it and intended it to stay, and from which the cu- 
pidity of man has wrenched him .... and forced him into 
this exotic condition on the soil of the United States, so long 
will this warfare go on, etc." l 

1 Congressional Globe, 3d Session, 40th Congress, p. 1010. 



240 The Political History of Slavery in the United States 

He favored colonization in the West Indies. 

Mr. Warner proposed to amend by giving suffrage and 
the right to hold office directly to all males twenty-one years 
old and upward in all cases, except those who may hereafter 
engage in rebellion against the United States or shall be 
convicted of treason, felony, or other infamous crime. 

Mr. Sherman seemed to have no special interest in pass- 
ing the amendment at all. He said : 

"I thought nothing would tempt me to say one word in 
this debate on the constitutional amendment, but Senators 
have already perceived the difficulty we are approaching, 
and we might as well at once face the issue." He stated the 
five different causes of exclusion from suffrage in this and 
other countries. 

First. Race, which has existed in nearly all the States 
until recently. 

Second. Property, which has existed in England always. 

Third. Religion, which exists in nearly all countries 
except this. 

Fourth. Nativity, which exists in nearly all countries. 

Fifth. Education, and that is an experiment of ours, as 
he believed, in Massachusetts. 

He proceeded: 

"Now, Mr. President, if we are endeavoring to settle 
this question once for all, I think it would be wiser and bet- 
ter to declare that every male citizen of the United States, 
native or naturalized, above the age of twenty-one years, 
shall have the right to vote, unless he is excluded for crime; 
and that no State shall exclude any one from the right to 
vote because of his race, because of his property or want of 
property, because of his religion, because of his birthplace, 
or because of the misfortune of want of education. As this 
amendment [of Warner] makes the nearest approach to 
that, I have made up my mind to vote for it, or I shall vote 
for the amendment of the Senator from Massachusetts [Mr. 
Wilson]. I do not like to apply a rule so narrow and lim- 
ited as to guaranty rights to the African race which we 
refuse to the Asiatic race or to other races. I do not wish 
to include the ignorant masses of our Southern population 
and exclude the partially intelligent classes of the State of 
Massachusetts. I do not want to include the Negroes and 



Presidential Election of 1868 241 

exclude, or allow a State to exclude, foreigners who are 
declared to be citizens of the United States under the laws 
of the United States. 

"Therefore, it does seem to me that if we intend to now 
prescribe a rule for suffrage in this country, we ought to 
make it operate universally and withdraw from the States 
all power to exclude any portion of the male citizens of the 
United States .... above twenty-one years of age of the 
right to vote, unless when the right has been forfeited by 
crime." 1 

Mr. Sherman, further discussing this subject, said : 

"The amendment [the Fifteenth] changes the Constitu- 
tions of thirty States of the Union. Among others it 
changes the Constitution of the State of Ohio. This is a 
very sensitive question with our people. The great body of 
the party to which I belong have long been in favor of dis- 
pensing with and repealing all discriminations on account of 
color, but we made an appeal to the people two years ago 
on this subject and were defeated; and I may say that no 
change can be made in the Constitution likely to excite so 
much popular feeling as this proposed change to extend to 
the Negro race in the State of Ohio the elective franchise. 
I say this freely, because I am in favor of giving to them 
every right which is conferred by the Constitution and laws 
on white people. . . . 

"Why should we protect the descendant of the African, 
when in certain States of the Union a man who has the mis- 
fortune not to be able to read and write cannot vote? Why 
should we apply this supreme remedy of the Constitution 
only in favor of this particular class of our citizens?" 2 

Mr. Sherman, continuing and arguing in support of the 
proposition that the amendment to the Constitution should 
be framed so as to secure suffrage in all the States to all 
male adults except those convicted of crime, said : 

"But, sir, if I go before the people of Ohio with a con- 
stitutional amendment such as that which is sent to us by 
the House of Representatives, or that which is proposed by 
the Judiciary Committee, how shall I be met? Take the 
prejudice and feeling of that people known to me, and known 

1 Congressional Globe, 3d Session, 40th Congress, p. 1013. 

2 Ibid., p. 1039. 



242 The Political History of Slavery in the United States 

to all Senators, and when I go before them how shall I be 
met? I shall be told: 'Here are .... people excluded 
from office in New Hampshire because they are not Protes- 
tants. Why do you not correct these evils at your own door, 
evils brought upon the country by your own friends, and why 
should you protect only and seek to extend only the right of 
suffrage to the colored race, who are just emancipated from 
bondage, who are ignorant, who are without the capacity, 
probably, for self-government? . . .' How can you answer 
it? It is impossible to answer, especially when you meet a 
prejudiced people who have got to vote on this question. The 
people of Ohio come from all the old States, many of them 
from Virginia and Maryland and other of the old slave 
States. They are full of prejudices. Unless you show that 
you are willing to adopt a universal rule which tramples down 
their prejudices, and the prejudices of the people of other por- 
tions of the old States where they have not adopted, prob- 
ably, the more advanced rules on this subject, — unless you 
can show that you have dealt with this question in an enlight- 
ened spirit of statesmanship, you will be borne down by popu- 
lar clamor. It will be said this is a mere party expedient to 
accomplish party ends, and not a great fundamental proposi- 
tion upon which you shall base your superstructure." l 

The extracts above quoted were part of a speech made in 
advocacy of a substitute to the amendment as reported by the 
Judiciary Committee offered by Mr. Wilson, of Massachusetts, 
in the following words : 

"No discrimination shall be made in any State among the 
citizens of the United States in the exercise of the elective 
franchise, or in the right to hold office in any State on account 
of race, color, nativity, property, education, or religious 
creed." 

This substitute was adopted by a vote of 31 to 2J. 2 

The above is the shape in which the amendment passed the 
Senate, except that it embraced also a provision in relation 
to elections of President, to be hereinafter set out, yeas 39, 
nays 16. Among the nays were Senators Anthony and 
Sprague, of Rhode Island, and Mr. Edmunds. Among the 

1 Congressional Globe (Feb'y 9, 1869), 3d Session, 40th Congress, 
p. 1039. 

3 Ibid., p. 1040. 



Presidential Election of 1868 243 

absentees were Senators Fessenden, Frelinghuysen, Patter- 
son, of New Hampshire, Pomeroy, and Trumbull. 1 

Before its passage several amendments to the resolution 
of submission were offered and voted down. Among them 
was a proposition of Mr. Buckalew that the amendment 
should be submitted to the Legislatures of the States, the 
most numerous branch of which should be elected after the 
submission. On this the yeas were 13, and nays 43. 2 

Another was a proposition of Mr. Dixon that the amend- 
ment should be submitted to conventions to be called in each 
State; on this the yeas were 11, nays 45. 3 

Morton offered an amendment requiring electors for Pres- 
ident and Vice-president to be elected by the electors in each 
State qualified to vote for representatives in Congress. This 
amendment was at first voted down by yeas 27, nays 29. 4 It 
was afterward on the same day carried by a vote of thirty- 
seven to nineteen, and it was provided that this proposition 
should be submitted for ratification separately. 5 

Mr. Sumner moved as a substitute for the amendment, 
so far as it related to suffrage and holding office, a statute 
directly affirming the right of all to vote and be voted for, 
without discrimination as to race or color, and punishing all 
who should obstruct or deny this right. On this the yeas 
were 9, — Messrs. Edmunds, McDonald, Nye, Ross, Sumner, 
Thayer, Wade, Wilson, and Yates. 6 

It is proper to note here the difference between the two 
houses as to the framework of the Fifteenth Amendment. 
The House proposed simply to secure the right of suffrage 
against abridgment or denial by any State, or by the United 
States, on account of race, color, or previous condition of 
slavery. As amended by the Senate, it was a prohibition 
against discrimination in any State as to the right to vote 
and to hold office on account of race, color, nativity, property, 
education, or religious creed. The Senate also amended it by 
adding as a separate article to be submitted separately Mr. 

1 Congressional Globe, 3d Session, 40th Congress (Feb'y 10, 1869), 
p. 1044. 4 Ibid., p. 1041. 

2 Ibid., p. 1040. B Ibid., p. 1042. 

3 Ibid. 6 Ibid., p. 1041. 



244 The Political History of Slavery in the United States 

Morton's amendment securing the election of electors for 
President and Vice-president by popular vote. 

In this shape the Fifteenth Amendment went to the House 
for action on the changes made by the Senate. 

The amendment came before the House of Representa- 
tives on February 15. 

Mr. Woodward, of Pennsylvania, asked leave to offer an 
amendment submitting the proposed amendment to the Con- 
stitution to Legislatures of the States thereafter to be elected. 
He said, in support of this, that he wanted to give the people 
of this country an opportunity to pass upon the question ; that 
a submission to the present Legislatures was not submitting 
it to the people, and gave them no opportunity of passing on 
it. He was not, however, permitted an opportunity to offer 
his amendment. 

On the motion to concur in the amendment so far as it 
related to suffrage, the ayes were 37, nays 133. 1 

The Morton amendment in relation to the election of Pres- 
ident and Vice-president was concurred in. 

The House refusing to concur in the Senate amendments, 
a conference was asked. When this went back to the Senate 
that body, after first settling that a vote to recede from its 
amendments did not pass the original House resolution, voted 
so to recede by yeas 33, nays 24. 2 

Afterward a motion was made to lay the House resolu- 
tions of amendment on the table, ayes 28, nays 3c;. 3 

On the motion to concur in the House resolution the ayes 
were 31, nays 27.* Two-thirds not voting for it, the motion 
was lost. 

The Senate then proceeded to consider Senate Joint resolu- 
tion No. 8, which had been laid aside on the adoption of the 
House resolution of amendment. 

Some verbal amendments were made to the proposition of 
amendment on this resolution, so as to make it read as fol- 
lows : "The right of citizens of the United States to vote 
and hold office shall not be denied or abridged by the United 
States or by any State on account of race, color, or previous 

1 Congressional Globe, 3d Session, 40th Congress, p. 1226. 
"Ibid., 1295. 

* Ibid., 1297. 

* Ibid., p. 1300. 



Presidential Election of 1868 245 

condition of servitude," with a second section giving power 
to Congress to enforce it. 1 

A good deal of debate ensued on the final passage of the 
resolutions. Several amendments were proposed and voted 
down, and among them a proposition to submit the amend- 
ment to Legislatures to be thereafter elected. Finally, on the 
same day, the resolution of amendment passed, yeas 35, nays 
11. On the passage, Messrs. Sherman, Anthony, and Trum- 
bull, and others did not vote. 

As it passed the Senate the amendment was as it stands 
now, except that it then contained the words "and to hold 
office," securing that as well as the right of suffrage. 2 

Whilst the amendment was pending in the Senate, in sup- 
port of a proposition to submit the amendment to conventions 
or Legislatures elected after submission, Mr. Hendricks, 
among other things, said : 

"I know how it is ; it is now just as it was a year ago ; you 
are not willing that the question shall go to the people; you 
know that they will vote you down ; you know that they don't 
want it; you know that the large body of the people do not 
want it; and you want to force it under circumstances that 
their voice, which in America ought to be potential, shall not 
be heard upon it. That is the plain fact about this matter. 
You do not intend them to be heard. You do not care for 
their will. You care for your own purposes. What are they ? 
They have been intimated ; they are well understood, — to 
throw a political power in favor of your party that you do not 
now possess, to secure a vote that the people will not give to 
you. Therefore you want Legislatures already selected to 
act upon this proposition, when you told the people at the 
time they were selecting these very Legislatures that the ques- 
tion of suffrage should remain with the people of the States." 3 

Mr. Morton said : "I am willing to submit it to the ex- 
perience and observation of every Senator here to-night of 
any party whether a single Democratic speech was made in 
any State during the late canvass that was not devoted princi- 
pally to the subject of the Negro, — Negro equality, amalgama- 
tion, social equality, — if the people were not warned that their 

1 Congressional Globe, 3d Session, 40th Congress, p. 1301. 

2 Ibid., p. 1425. 
8 Ibid., p. 1314. 



246 The Political History of Slavery in the United States 

daughters were about to be married to Negroes, and if the 
Democratic party did not throughout the late canvass at every 
meeting and in every speech, in season and out of season, 
keep the whole question of Negro equality politically, socially, 
and in every other way, constantly before the people? And 
yet they now complain that the subject has not been discussed 
before the people." 1 

Mr. Hendricks : "I wish to say, in reply to my colleague, 
that whatever statements the Democrats made on this subject 
were very emphatically and earnestly denied by his party, so 
that the people, to say the least of it, would become confused 
in a discussion of that sort" 

Mr. Conkling: "The Senator will allow me to suggest 
in aid of his proposition that the people had become so accus- 
tomed to disbelieving what the Democrats did say that it did 
not make much impression." [Laughter.] 

Mr. Hendricks : ". ... I do not believe the people have 
any more confidence in politicians and party platforms and as- 
surances than perhaps they ought to have. I do not care about 
discussing that matter. But my colleague will not claim that 
in the State of Indiana the proposition to confer suffrage upon 
the Negro was made by his party last year. I recollect when 
the Civil Rights bill was a matter of discussion before the 
people elaborate arguments were made in that State by gentle- 
men who now occupy very high positions indeed to prove that 
the Negro would not be made a voter according to that pol- 
icy. . . ." 2 

Mr. Morton did not deny this. 

On the proposition to submit to new Legislatures the yeas 
were 10 and nays 39. Among those not voting were Anthony, 
Sherman, and Trumbull. 

Mr. Conkling, in order to quiet the scruples of some who 
were opposed to the amendment, argued that he did "not 
understand that a representative in the other House, or a 
member of this body, commits himself absolutely and in all 
senses to the wisdom and propriety of a proposed constitu- 
tional amendment by voting to submit it to the States of the 
Union." 3 He argued that a proposition of amendment might 

Congressional Globe, 3d Session, 40th Congress, p. 1315. 

2 Ibid. 

8 Ibid., p. 1 3 16. 



Presidential Election of 1868 247 

well be submitted by Congress, when a large part of the two- 
thirds necessary to submit it would not themselves advise its 
ratification, or act in favor of its ratification ultimately. 

The proposed constitutional amendment went to the House 
on February 20. Mr. Boutwell took the floor. He would not 
yield it to allow Mr. Woodward to move an amendment to the 
resolution submitting the Fifteenth Amendment to Legisla- 
tures chosen after the submission. He also declined to yield 
to allow amendments to be offered by Mr. Bingham and Mr. 
Shellabarger. He yielded, however, to Mr. Logan (General 
Logan) to move to strike out "and to hold office." 

Mr. Logan, in support of his amendment, argued that 
"the intention of the Constitution of the United States was 
to leave to the States to determine what persons should hold 
office. I believe it has been properly left there by the Consti- 
tution, and that it should be allowed to remain there. That 
it is necessary to put in the words 'and to hold office' to give 
the colored people the right to vote is all imagination. There 
is no law for it whatever. . . . What we should do, in my 
judgment, is to give all men, without regard to race or color, 
the right of suffrage, and when we give them the right to vote, 
they will take care of the right to hold office." x 

Mr. Butler, though favoring the idea that the right to 
hold office would follow the right to vote, yet was induced to 
vote against the amendment of Mr. Logan. He said : "It is 
apparent to me that if we do not pass this now as we receive 
it from the Senate it will be too late forever to pass it." 2 

On Mr. Logan's motion to strike out the words "and to 
hold office" the yeas were 70 and the nays were 95. 

Among the yeas were Bingham, Garfield, Schenck, and 
Logan. 

Mr. Bingham's motion to strike out "United States" and 
insert after "color" the words "nativity, property, or creed" 
was sustained by yeas 92, nays 70. 3 

This amendment made the proposed amendment read as 
follows : 

"The right of citizens of the United States to vote and 
hold office shall not be denied or abridged by any State on ac- 

1 Congressional Globe, 3d Session, 40th Congress, p. 1426. 

2 Ibid. 

' Ibid., p. 1428. 



248 The Political History of Slavery in the United States 

count of race, color, nativity, property, creed, or previous con- 
dition of servitude." 

The restriction was thus taken off the United States and 
left on the States alone. 

The question was then taken on the passage of the resolu- 
tion of amendment, — yeas 140, nays 37, absent 46. 1 

The resolution as thus amended was taken up in the Sen- 
ate on February 22. After some little debate it was postponed 
until the 23d, and then the motion to disagree to the House 
amendment and to ask for a conference was sustained. 

Messrs. Stewart, Conkling, and Edmunds were appointed 
conferees. 2 

The House conferees were Messrs. Boutwell, Bingham, 
and Logan. 

On the 25th of February the conference report was made. 
It was not signed by Mr. Edmunds. 3 

The report recommended that the House recede from all 
their amendments, and that the words "and to hold office" 
be stricken out of the amendment. 

It will be noticed that both Houses had agreed that these 
words "and to hold office" should be retained. They were in 
the Senate resolution when it was passed, and the House re- 
fused to strike them out, as before stated. 

Objections were made by Republican Senators that the 
Conference Committee had exceeded its jurisdiction in recom- 
mending that the words "and to hold office" should be stricken 
out, though they had been agreed to by both Houses, and did 
not, therefore, constitute a part of the disagreeing vote of the 
two Houses, about which the conference had been appointed. 
This view was supported by Mr. Pomeroy and Mr. Edmunds. 
Mr. Pomeroy produced all the precedents, the effect of which 
was stated by Mr. Edmunds to be as follows : 

"My friend from Kansas has shown from the Journals 
of this body that there never has been an instance, so far as 
he has gone, in which a committee of conference has attempted 
to go outside of the subjects of disagreement, and to change 
that which had already been agreed to, except where both 
Houses, dispensing by unanimous consent with all rules of 

1 Congressional Globe, 3d Session, 40th Congress, p. 1428. 
'Ibid., p. 1 48 1. 
' Ibid., p. 1593. 



Presidential Election of 1868 249 

order, have agreed unanimously to make some phraseological 
change." 1 

Note that the change outside of the disagreement had 
theretofore been only in phraseology, and that only by unani- 
mous consent of both Houses. 

1 Congressional Globe, 3d Session, 40th Congress, p. 1593. 



CHAPTER XI 



THE FIFTEENTH AMENDMENT 



This was now the 26th of February. The sands of the 
Fortieth Congress were fast running out. When it ended, it 
would be too late forever to pass the amendment, as suggested 
by General Butler. The next Congress, as suggested by Mr. 
Frelinghuysen, and sustained by Mr. Stewart, might not be 
favorable to it. Twenty-five Legislatures had been secured 
in the elections of the preceding fall, which could be relied 
upon "to spit upon the platform" on which they had been 
elected and to ratify the amendment without consulting their 
constituents or allowing the people to express their wishes in 
the matter. The Houses had disagreed. A conference had 
been appointed that not only settled the disagreement, but 
undertook, in obedience to a sentiment represented by General 
Logan, to undo the work that both houses had assented to. 
The right of the Negro to hold office was not acceptable to 
the Northern people. His right in that respect in the South- 
ern States, it was thought, was secured by the grant of the 
elective franchise ; and by the largeness of the members of 
this class in the South it was thought that his right to hold 
office there was also secured. 

The last fight on this constitutional amendment was made 
on the right of the Negro to hold office. 

Mr. Edmunds, — who, it will be recollected, refused to sign 
the conference report and afterward proved that the com- 
mittee had exceeded its just powers, — after referring to the 
ostracism of blacks by the States, and avowing that the very 
object of the amendment was to correct this and secure a true 
democracy, said : 

"And what are the steps on this report you propose to 
take to do it ? You propose to take the very steps .... you 
propose to take the very steps that all history has demon- 
strated to be deadly to a republic. 

250 



The Fifteenth Amendment 251 

"To be sure, the instances are not frequent, for few people 
have been so wanting in intelligence and in a knowledge of 
the philosophy of a Republican government as ever to insti- 
tute a distinction between the right of a citizen to participate, 
if he is to participate in the government at all, entirely (sic) ; 
and if you give him the right to have a voice in the govern- 
ment, that voice cannot have any live expression, unless it 
enables him to choose from among his fellow-citizens the man 
who suits him for his representative, instead of confining him, 
as this amendment does, to a chosen aristocratic class, saying 
to a citizen of a free Republic, 'You have rights of manhood, 
you have rights of equality, but you shall exercise those rights 
in choosing some one of us to rule over you, instead of some 
one of your fellow-citizens whom you prefer.' " * 

Mr. Edmunds further said : 

"There is no instance within my knowledge of history for 
the last five hundred years in any country .... where there 
has been attempted the method that is proposed in this amend- 
ment, of excluding the mass of the community from exercis- 
ing the powers of government in the way of being voted for 
and representing their fellow-citizens, instead of merely hav- 
ing the boon that the plebeians of Rome had, to vote for the 
aristocratic magistrate selected from among the patricians. 
Now, sir, do we wish to set up a patrician class in these South- 
ern States? Do we wish to try an experiment that has over- 
thrown the most civilized of ancient governments? It would 
seem that we did by this amendment. . . . Why, sir, we have 
an illustration before our eyes that has been pressing itself 
upon our attention for months on this very subject. You 
have in this nation at this day, in one of the very States upon 
which this Constitution is to operate, an illustration of the 
result you will come to by adopting an amendment of this 
kind, an amendment which, containing half of an inseparable, 
indivisible, and united truth, is in reality a falsehood ; and 
that State is Georgia. You will find, if you let the thing run 
on, that the example of Georgia will be imitated in all the 
other States, and you will have set up in this Republic a class 
aristocracy depending not upon intelligence, upon which some 
philosophers say a distinction may be made, . . . but de- 
pendent upon the mere accident of the complexion of a human 

1 Congressional Globe, 3d Session, 40th Congress, p. 1626. 



252 The Political History of Slavery in the United States 

being, who you say, so far as you go, is entitled to equal rights 
and privileges as a citizen of the country. . . . 

"Are you not giving to the people the mere husk and shell 
of the feast of political equality to which you invited them, 
reserving the substance and juices for yourself? . . . 

"And where is the necessity for taking this half step, as 
some gentlemen argue it, of getting all you can, if you cannot 
get the rest ? Is it to be found, so far as we have yet heard, 
in any argument of the intrinsic propriety of the thing? Not 
at all. No Senator has raised his voice to defend the right of 
any State to say while you give a man the right to vote you 
shall not permit him to be voted for. I do not know but that 
we shall hear it yet, though nobody has heard it so far. What 
is the reason, then? Some vague fear, I suppose, fills the 
mind of some trembling convert to liberty that his people 
will not be satisfied to give the Negro the right to run against 
themselves for some office, but they are willing to confer upon 
him the boon of voting for them. I do not believe in that, sir. 
As I have said, I believe it to be ruinous to the Government 
if it is carried out. I believe it to be an outrage upon the good 
sense and patriotism of the country; and so believing, — though 
I do not wish to occupy time in stopping its progress if my 
political friends think it best to pass it, — I have felt bound to 
say so." x 

Mr. Wilson, of Massachusetts, stated that for thirty-three 
years he had opposed slavery on all occasions by word and 
deed ; he had asked always for what was right, but had always 
taken what he could get, believing that the next step would be 
more easily taken after one had been already taken in the 
right direction. "I suppose, sir, I must act upon that idea 
now ; and I do so with more sincere regret than ever, and with 
some degree of mortification. In the early part of this ses- 
sion, before the month of December passed away, I had hoped 
that the majority in Congress would seize the great occasion 
which was presented, when the hearts, minds, and souls of the 
people, after having passed through a great struggle, were 
deeply imbued with the love of liberty and the sense of jus- 
tice, and we had twenty-five Legislatures in the hands of our 
friends, and take the responsibility of submitting to the Legis- 
latures a proposition to amend the Constitution so as to secure 

1 Congressional Globe, 3d Session, 40th Congress, p. 1626. 



The Fifteenth Amendment 253 

to the colored citizens of this country the right to vote and be 
voted for. But day after day, week after week, month after 
month, passed away without action." x 

Mr. Wilson then referred to the proposition giving colored 
men the right to vote and not to hold office, and called it a 
lame and halting one. He alluded also to the amendment as 
it passed the Senate, securing the right to vote and hold office 
irrespective of nativity, property, education, and creed, and 
he deplored its defeat. He referred to the action of Georgia 
where the Constitution secured only suffrage to black men, 
and afterward they were turned out of the Legislature. He 
said : "The black men in their magnanimity and generosity 
.... allowed unrepentant and unforgiven traitors to sit in 
the Legislature with them, and the moment those men got the 
power they hurled the black men out of the Legislature. 
There are no Senators sitting here from Georgia on account 
of that action, and we have passed months and we do not yet 
see the remedy." 2 

"Do not tell me, sir," said Mr. Wilson, "that the right to 
vote carries with it the right to hold office. It does no such 
thing." He referred to a declaration made by Mr. Webster 
in the constitutional convention of Massachusetts in 1820, to 
the effect that no man had a right to hold office, but that the 
people had a right to define and make the terms and conditions 
upon which offices should be held. He (Mr. Wilson) said 
he did not believe in anybody's right to make terms and con- 
ditions founded on color or race, that could not be overcome, 
but many of the States had done it, and silence would not over- 
throw what they had done. He expressed the hope that the 
Negroes would soon acquire the right to hold office, and he 
said that he would work to that end. 3 

Mr. Morton, of Indiana, said that he would probably vote 
for the conference report because he thought he could not do 
any better. He went on the principle of taking a half loaf 
when he could not get a whole one. He expressed his dis- 
satisfaction at the' striking out of "property" and "creed" by 
the Committee of Conference; and, speaking in reference to 
"creed," he said: 

1 Congressional Globe, 3d Session, 40th Congress, p. 1626. 

2 Ibid., p. 1627. 

3 Ibid. 



254 The Political History of Slavery in the United States 

"What was the objection to putting that in? We had 
agreed to it, the House had agreed to it, and yet the committee 
report to us a proposition rejecting it. Sir, as a question of 
public sentiment and favor, the proposition as it came back 
to us substantially from the House the last time would be far 
stronger before the people than the simple one of confining 
it to color or race, and then we are liable to this charge, which 
will now be made, and the force of it we can hardly avoid ; 
it will be said that we are willing that the Negroes shall vote, 
provided they vote for white men, but the offices must be re- 
served for white men. We can say of course that we do not 
mean that ; but they will come back on us and say, 'When the 
proposition was made in the Senate, and after it had been con- 
curred in by both Houses, that the words "to hold office" 
should be put in, why did you strike them out?' What answer 
can we make?" 1 

Mr. Morton made no attempt to answer the question. 

Mr. Sawyer, of South Carolina, said rather than vote 
against the amendment, he would vote to concur in the con- 
ference report. "We have," he continued, "for two years 
been subject to the charge in those States [the Southern] that 
the Republican party of the Northern States put the Negro 
on one platform in the loyal States and on another platform 
in the lately disloyal States. We have been constantly called 
upon to repel this charge. . . . 

"Now, Mr. President, we are asked to accept an amend- 
ment to the Constitution which pleads guilty to the charge; 
we are asked to go back to our people and say to them that 
the national Republican party as represented in Congress ac- 
knowledges that the charges which have been made by the 
late unrepentant rebels against that party are true." He be- 
lieved that some of the lately reconstructed State Legisla- 
tures, strongly Republican as they are, will hesitate before 
they adopt the amendment, and that "there is quite as much 
risk of its being lost in a number of those States, as there is 
in its being lost in an equal number of Northern States if you 
put into the proposition the right to hold office." 2 

In this extract is disclosed a reason, if not a principal 
reason, that actuated Republican Senators and Representa- 

1 Congressional Globe, 3d Session, 40th Congress, p. 1628. 
3 Ibid., pp. 1628-9. 



The Fifteenth Amendment 255 

tives in excluding from the Fifteenth Amendment the guar- 
anty of the right of Negroes to hold office. In nearly all the 
Northern States at that time Negroes were excluded from 
office, as well as from voting. The Fifteenth Amendment was 
precipitated upon the country immediately on the success of 
General Grant upon a platform that solemnly pledged the 
party against it. Twenty-five Republican Legislatures had 
been obtained at the same election and on the same platform- 
It was believed that Negro suffrage as a punishment to the 
South, and as a means of controlling the election there at the 
will of the Republican party, might be tolerated by enough 
Northern States, which, in connection with the reconstructed 
Southern States, would constitute the three- fourths necessary 
for ratification. In the Northern States but few Negroes 
would be voters, not enough to influence materially their in- 
terests. They would vote for the Republican party from 
gratitude. This was assumed, and rightly assumed. The 
addition of these few voters to the electoral bases in those 
States would, therefore, have no other effect than to add to 
the strength of the Republican party and make it more difficult 
to dislodge it. It was supposed that for suffrage alone the 
amendment could be carried on party grounds before Legisla- 
tures already elected. But when it was proposed to go a step 
further and confer on them the right to hold office, whereby 
there was to be a possibility of having Negro magistrates, 
legislators, and governors in the Northern States, it was 
feared that even these pliant Legislatures, already elected, 
could not be relied on. They were very willing, — as Mr. 
Morton said the charge would be, a charge that he could not 
answer, — to have the Negroes vote for white men for whom 
the offices were reserved, but it was feared they would not go 
further. 

This fear was so strong that even the implied threat 
of Mr. Sawyer, that the Southern Negro legislatures would 
not stand it, was of no avail. 

No Republican Senator, I believe, attacked Negro office- 
holding in the abstract. Nearly all who spoke expressed 
themselves in favor of it. 

Mr. Logan, to whose services in the House and on the 
Committee of Conference is largely due the striking out of 
the words "to hold office," did not express opposition to the 



256 The Political History of Slavery in the United States 

Negroes holding office per se, but, as we have seen, claimed 
it as a necessary right to each State to determine that matter 
for itself. He contented himself with the chance the Negroes 
would have in States in which they were strong enough to 
secure office by virtue of their right to vote. It seems nobody 
was satisfied with the amendment as it was passed. Some 
wanted one thing and some another. Yet the Congress was 
expiring, and there was a fear that the next Congress would 
not propose it. 

These views are well expressed as follows : 

Mr. Stewart, of Nevada, said : "There are no two Sena- 
tors who agree exactly as to the thing which should be done. 
The Senator from Kansas has been pressing his motion for 
female suffrage; the Senator from Vermont wants to have 
office-holding included ; the Senator from Massachusetts wants 
'nativity' and 'creed' inserted. . . . 

"I wanted to insert the right 'to hold office' in this propo- 
sition, but if I cannot give the poor and the downtrodden the 
right to hold office, I will give them [the right to vote] the 
power to say who shall hold office and dispense office." 

He urged strongly immediate action on the amendment as 
it stood, giving the Negroes suffrage. He said: "If we fail 
now, it never will be brought about. The States by individual 
action will not do it in his [Senator Sawyer's] day or mine. 
. . . Every Senator must see that there is not time for further 
action." 

Mr. Frelinghuysen, interrupting him : "And no chance at 
the next session." 

Mr. Stewart : "And no chance at the next session. Your 
Legislatures are waiting now, ready to act. Send it to an- 
other conference and the whole thing is lost." 

Mr. Frelinghuysen : "There will be no chance at the next 
session because there will not be a two-thirds vote for it." 

Mr. Stewart : "And there must be two-thirds in the other 
House." x 

Mr. Davis, of Kentucky, commenting on the above, said : 
"That presents the party in such a strait as it must upon 
compulsion do the work now. If the Legislatures hereafter 
to be elected are against, or will be against, the proposed 
amendment, as these two able leaders [Stewart and Freling- 

1 Congressional Globe, 3d Session, 40th Congress, p. 1629. 



The Fifteenth Amendment 257 

huysen] of the party in the Senate concede, what would be- 
come of the party if it did not pass the Fifteenth Amendment 
immediately and have all the political benefit which it is 
capable of giving? What would become of the party, too, 
if the amendment should now fall to the ground .... and 
after the 4th of March it shall be found that the Republicans 
have not a majority of two-thirds of the House to pass 
it? 

"But the case would not be desperate, as the honorable 
Senator stated. The party in the House would only have to 
resort to its ordinary tactics, and the tactics that have been 
practised in this body also. They would only have to expel 
a lot of the Democratic members from the two Houses to give 
them the requisite majority of two-thirds, and they would be 
in full possession again." 1 

Mr. Hendricks and other Democratic Senators resisted the 
amendment with great ability. 

He proceeded to comment on the reason given by Mr. 
Frelinghuysen for action now, that is, that there would not 
be two-thirds majority for it in the next House, when Mr. 
Frelinghuysen interrupted by saying that he understood now 
upon inquiry that the Republicans would have two-thirds ma- 
jority in the next House. 

Mr. Hendricks then said : "He [Mr. Frelinghuysen] fur- 
nished to the Senator from Nevada the argument that on the 
4th of March a new Congress would come in, and the judg- 
ment of the House of Representatives would then be against 
this measure. That House was elected last fall, and the judg- 
ment of the country has been expressed in that election to 
some extent — to a very little extent in my judgment — upon 
this question; but it is supposed to be in our theory of govern- 
ment the last expression of the will of the people upon the 
subject." 2 

The argument was that, the next Congress being against 
the measure, the friends of it would propose to prevent the 
action of the popular will and take advantage of the people 
when the accident of a two-thirds majority in both branches 
would give them the power to do it. 

He further said : "The debate to-day showed that two- 

1 Congressional Globe, 3d Session, 40th Congress, p. 1630. 

2 Ibid., p. 1 63 1. 



258 The Political History of Slavery in the United States 

thirds of the Senators are not in favor of this proposi- 
tion. . . - 1 

"So far as I am concerned I repudiate the whole doctrine 
that we can take a half loaf, which expresses the idea that in 
the matter of an amendment to the Constitution it is proper 
to compromise, to adjust, to trade, if I may so express it. It 
is not right. When an amendment to the Constitution is made, 
that amendment ought to command in all of its provisions 
the judgments of two-thirds of this body and two-thirds of 
the House. Everybody sees from this debate — it is not cov- 
ered up — we all know that two-thirds of this body do not 
agree to this." 2 

Replying to Mr. Wilson's argument that the Republicans 
should act now because they have twenty-five Legislatures, 
Mr. Hendricks said : 

"The whole of this argument rests upon this — that by a 
statement in the platform of last year the right to control 
suffrage in the States of the North properly belonged to the 
people of those States. Upon that platform a political ma- 
jority was obtained in twenty-five States. Those twenty-five 
States, as I understand from the Senator from Massachusetts, 
stand now ready to ratify this constitutional amendment; and 
what proposition is that? That the people are against it, but 
the Legislatures and Congress are for it. We will not let it 
go to the people either through conventions or Legislatures 
hereafter to be elected ; but it must be hastily dispatched here, 
sent down to the States, that Legislatures chosen upon an op- 
posite platform may fasten it upon the people. Then, as sug- 
gested to me by the Senator from Kentucky, it becomes a 
difficult matter for the people, a majority of whom to-day are 
against this measure, to undo that which is thus accom- 
plished." 3 

He insisted that this was an entire abandonment of the 
doctrine that the Government should be fashioned according to 
the will and pleasure of the people. "But," said he, "now the 
doctrine is that we have a right to take the people at a disad- 
vantage ; that because you professed to them last year that it 
was their right in their States to regulate this question, and 

1 Congressional Globe, 3d Session, 40th Congress, p. 1632. 

2 Ibid. 

3 Ibid. 



The Fifteenth Amendment 259 

thereby obtained from them a majority of the Legislatures, 
it is your right hastily to pass this business through Congress 
and send it down to the States and fasten it upon the people 
before their voice can be heard upon it. That is the precise 
attitude of the question in the Senate at this hour, and that 
is the precise argument upon which it is claimed that this 
report of the committee must be carried through; not that it 
is right; not that the Presiding Officer of this body believes 
it is as it should be; not that my colleague [Morton] believes 
it is as it should be; not even that the chairman [Stewart] of 
the Committee of Conference believes it is as it should be; 
but it is in such a shape as you can pass it; you can take half 
a loaf from the people; you can force it through the State 
Legislatures and accomplish a political result, not having the 
judgment and approval of two-thirds here and not having the 
approval of the people of the country." 1 

Replying to a statement of Mr. Drake that the result of 
the election in Indiana in the preceding fall indicated that Mr. 
Hendricks did not represent the sentiment of that State on 
this amendment, Mr. Hendricks said : 

"His [Drake's] party said to the people of Indiana that 
when Mr. Hendricks, or any other Democrat in the State, 
told them that it was the purpose of their [the Republican] 
party to carry out Negro equality, it was a slander; that it 
was not their doctrine; and, Mr. President, you told them 
that in a document of the greatest dignity your party could 
produce, — the national platform. In that you said to the 
people of Indiana, 'The right properly belongs to you to say 
who shall vote and hold office in that State.' Upon that plat- 
form you went before the people of Indiana and satisfied a 
great many of them that they ought not to credit the suspicions 
expressed by Democrats of your integrity in that declaration. 
I did not believe very much in it. I believe I understood what 
was the ultimate purpose; but the plain and unsophisticated 
people of the country, that had perhaps not seen quite so much 
of political movements and machinery, did believe you, and 
they thought that in fact you intended to leave to the people 
of the States the regulation of suffrage and the right of hold- 
ing office. You said to the people one thing, and then after 
you have got the majority of Congress and the Legislature 

1 Congressional Globe, 3d Session, 40th Congress, p. 1633. 



260 The Political History of Slavery in the United States 

you propose to do another thing. That would be defined not 
as the highest act of honesty in ordinary commercial trans- 
actions." * 

In the debates it is thus seen that Republican Senators 
met the charge that passing the amendment was a violation of 
the platform of their party, — the solemn promise made to 
leave the question of suffrage to the action of the States, — 
by the statement that the Democrats had charged that this 
promise was a sham and intended to deceive the people, and 
that the Republican leaders would disregard it if they suc- 
ceeded in the election. This would be impossible in ordinary 
times. But men's passions were then excited. The lust for 
power was then stronger than ever before. The Southern 
people were not represented in Congress. They were hated 
for their action in the war. Punishment by legal tribunals 
was then impossible. The Fourteenth Amendment had, con- 
trary to the wishes of its authors, operated as an amnesty, 
and the President could exercise the pardoning power to any 
extent. It had been determined, as we have seen, that punish- 
ment might be rightly inflicted by establishing governments 
that would of themselves ruin the Southern States, as ex- 
pressed by Mr. Garfield. Governments and political institu- 
tions that have their rightful existence in the hypothesis that 
they contribute to the happiness and welfare of the governed 
in this new gospel were deemed to be the rightful instruments 
of inflicting ruin. To such a degree had this perversion of 
judgment been carried that to compass the end of ruin to the 
vanquished it was deemed not infamous to disregard the most 
solemn pledges that had been made to the people in securing 
their suffrages; and it was deemed proper to justify this 
breach of faith by the avowal that their political opponents 
had attributed to them this intention to deceive. 

But there were developed difficulties in coming to an agree- 
ment as to what the Fifteenth Amendment should contain. 
We have noticed Mr. Stewart's declaration on that subject, — 
that no two senators agreed as to this. Mr. Morton, Mr. 
Sherman, and others wanted many other disqualifications re- 
moved than the mere disqualification of race. In at least two 
of the New England States there was a disqualification of the 
illiterate. In another, Rhode Island, there was a discrimina- 

1 Congressional Globe, 3d Session, 40th Congress, p. 1633. 



The Fifteenth Amendment 261 

tion between native born and naturalized citizens. Men who 
had concurred in imposing on the South universal Negro suf- 
frage, with prohibition on the Southern States to require any 
degree of intelligence, or the possession of any amount of 
property as a qualification for suffrage, were unwilling to im- 
pose this yoke on themselves. They were willing to ordain 
that there should be no discrimination as to race because there 
were but few Negroes within their borders. They were un- 
willing to prohibit a discrimination based on intelligence and 
nativity, because there were many naturalized citizens in their 
borders and many natives who were incompetent from want 
of proper intelligence. 

Mr. Anthony, of Rhode Island, was so opposed to these 
provisions that added other subjects for non-discrimination 
than race that he was opposed, or seemed to be opposed, to 
the whole movement. He said that he apprehended "that 
there is no possible danger of their [the Negroes] losing the 
rights which have thus [by the reconstruction laws and the 
new Constitutions of the reconstructed States] been conferred 
on them. The ballot has been given to them and cannot be 
taken from them without their own consent. To doubt their 
ability to keep it is to doubt the wisdom of conferring it upon 
them." x 

He thus expressed his repugnance to taking any action at 
all on the subject. He did not recognize at all the latter-day 
claim that the Fifteenth Amendment was one of the results 
of the war that was demanded to secure the fruits of victory. 

Proceeding, he professed a reluctance to the making of 
changes in the Constitution, declaring that an amendment to it 
was the greatest of all matters devolving on Congress and on 
the States. He seemed to be impressed unfavorably with the 
whole movement, especially with the haste that characterized 
the proceedings. He even seemed to have some feeling for 
the rights of the Southern people. On these points he de- 
clared that they should approach the subject of amendment to 
the Constitution with respect for the rights of the minorities, 
and deliberately, with ample time for "consultation here" and 
with opportunities for full and frank consultation by the 
States and by the people. "We should take no advantage," 
said he, "of accidental majorities, but should secure to every 

1 Congressional Globe, 3d Session, 40th Congress, p. 1640. 



262 The Political History of Slavery in the United States 

proposition of amendment the fair and considerate judgment 
of the authorities to which the Constitution confided the mat- 
ter." 

This was the strongest indictment of the conduct of his 
party friends in passing the measure at that session, and indi- 
cated that he would vote to give more time for the delibera- 
tion and fair opportunity to the people of the States to con- 
sider and determine on this momentous change in the 
Constitution. 

Nevertheless, as a party man, he had determined to vote 
for the amendment if it were only confined to suffrage to 
Negroes, not trenching upon the Constitution of Rhode Island 
discriminating against naturalized foreigners. Proceeding 
further, he said : "But it seems plain that Congress has de- 
termined to submit to the States some proposition of amend- 
ment of the Constitution on the subject of suffrage; and this 
is the form of all those in which it has been presented, except 
the amendment of the Senator from Michigan [Mr. Howard] 
that strikes me as least objectionable." 

He only found it the least objectionable. This was not 
a sufficient reason for supporting it, so he fell back on that 
heresy of Mr. Conkling, that in voting to submit a proposi- 
tion of amendment to the States a Senator or Representative 
did not necessarily approve of the measure. On this point 
Mr. Anthony said : "In voting for it, I vote merely to present 
it to the States for their constitutional action; . . . and I by 
no means thereby surrender my right of judgment upon its 
ratification when the discussion shall come up in the State 
with whose high commission I am honored in this chamber." 1 

Mr. Wilson, of Massachusetts, had criticised the Consti- 
tution of Rhode Island on the question of suffrage. Replying 
to that, Mr. Anthony said he did not happen to be in the Sen- 
ate when Mr. Wilson spoke, and he would not undertake to 
make defense of the State regulations on the subject. 

"They suit us," continued Mr. Anthony; "I am sorry they 
do not please others; but they were not made for the people 
of Massachusetts; they were made for us, and whether right 
or wrong they suit us, and we intend to hold them; and we 
shall not ratify any amendment of the Constitution of the 
United States that contravenes them, and we have the satis- 

1 Congressional Globe, 3d Session, 40th Congress, p. 1640. 



The Fifteenth Amendment 263 

faction of knowing that without our State, the necessary 
number of twenty-eight States cannot be obtained for the 
ratification of any amendment whatever until new elections 
take place. What opportunity there will be then for it, other 
Senators can judge as well as I." 1 

Mr. Wilson : "Little Rhody takes the responsibility." 

Mr. Anthony: "She takes the responsibility of managing 
her own affairs in her own way, and she takes the responsibil- 
ity of exercising her constitutional right, which in this cham- 
ber and on this subject is equal to the constitutional right of 
any other State in the Union. If that is a mistake, it is a 
mistake which the fathers made ; and the advantage of which 
we are not disposed to surrender." 

Mr. Davis, of Kentucky, was manifestly impressed with 
this bold and manly assertion of the rights of Rhode Island 
to manage her own internal affairs as to suffrage in her own 
way and with the speaker's determination to stand by her in 
the exercise of the right, and he was disposed to inquire if 
Mr. Anthony would accord similar rights to other States. 
Not getting a satisfactory or direct answer, Mr. Davis said : 
"My honorable friend has not answered my question. My 
question is, is it right and proper that the two Houses of 
Congress shall change the Constitution and the government 
either of the State of Rhode Island or the State of Kentucky, 
in opposition to the wishes and the will of their people?" 

Mr. Anthony : "As that is a private matter between my 
friend from Kentucky and myself, I will answer that question 
when the vote has been taken." [Laughter.] 

Mr. Davis: "That is sufficient, sir." [Laughter.] 2 

Mr. Norton, of Minnesota, said: ". . . . I think it due 
to those members of the body who are opposed to this propo- 
sition, and I think it due to the country, that it should be made 
known that this proposition now at last when it comes to be 
passed does not receive the sanction in fact of two-thirds of 
the Senate." 

He controverted the position of Mr. Anthony that a Sena- 
tor could vote for the proposition when he disapproved of it; 
and then rely on making his opposition to it efficient by oppos- 
ing its ratification by his State. He insisted that the true 

1 Congressional Globe, 3d Session, 40th Congress, p. 1640. 
■ Ibid. 



264 The Political History of Slavery in the United States 

meaning of the Constitution was that Senators should vote 
their honest opinions on proposals to amend the Constitution, 
and should vote to submit no amendment that in their judg- 
ment should not be ratified. 1 

Mr. Warner, of Alabama, wanted to enter his protest 
against the character of this amendment. He said : "While 
I shall probably vote for it in the shape it is, I shall do it rather 
in deference to the judgment of abler and wiser men than my- 
self than in accordance with my deliberate judgment. . . . 

"I have no doubt that if Mississippi, Texas, or Virginia 
were to come here with a Constitution containing these exact 
words which we now propose to put into the Constitution of 
the United States, she would not be admitted by this Senate. 
After the example of Georgia I do not believe that this Senate 
and this Congress would accept from one of these States a 
Constitution containing these identical words upon the ques- 
tion of suffrage and the rights of the colored people." 2 

Yet Mr. Warner and Mr. Anthony voted for the amend- 
ment. 

Mr. Fowler, of Tennessee, said : "I understand it [the 
proposition to amend] to be simply the assertion of that prin- 
ciple, which has been maintained in a number of the States, 
and that it sanctions and sanctifies the action of the Georgia 
Legislature which has kept out two Senators from this body 
during the present session; and we arrive at this principle 
through the action of a gambling committee which, after the 
Senate and the House had adopted a more liberal and much 
better principle, shuffled the cards over again and gave us a 
new deal that will satisfy a certain number of gentlemen. 
The effect of it is to exclude from office a large number of 
the citizens of the Southern States merely to gratify a preju- 
dice that exists in certain Northern States, who wish to heap 
heavy burdens upon the shoulders of other men that they will 
not touch with their own fingers." 3 

On the final vote, February 26, 1869, the majority was 
exactly two-thirds. Mr. Anthony was one of the majority, 
and if he had voted as he said his convictions were, the propo- 
sition to amend would have been defeated. 

1 Congressional Globe, 3d Session, 40th Congress, p. 1640. 

2 Ibid., p. 1 64 1. 

3 Ibid. 



The Fifteenth Amendment 265 

It is proper to note that Mr. Edmunds, Mr. Sumner, and 
Mr. Sawyer were among the absentees, of whom there were 
fourteen. 

Of the loyal or adhering States, California, Delaware, 
Maryland, and Oregon rejected the amendment. Tennessee, 
reconstructed under Mr. Lincoln's plan, also rejected it. The 
Legislature of New York ratified it on April 14, 1869, an d 
withdrew the ratification on January 5, 1870. 

Six States rejected it without dispute. New York re- 
jected it before it was ratified by the requisite number of 
States, having first accepted it. Ohio ratified on January 27, 
1870, after having rejected it on May 4, 1869. New Jersey, 
after having rejected it, ratified it on February 21, 1871, 
after it had been proclaimed ratified. Mississippi, Texas, and 
Virginia ratified it under the provisions of the reconstruction 
acts requiring them to do so as a condition of representation. 

Counting only the adhering or loyal States, with Tennes- 
see, which had been readmitted, there were twenty-seven; and 
three-fourths of them would be nineteen, as the necessary 
number. Of these, six rejected and stood by the rejection. 
New Jersey and Ohio also rejected, making eight rejections 
and only nineteen acceptances. 1 

It is needful now to turn our attention to the three States, 
— Virginia, Texas, and Mississippi, — in which the recon- 
structed Constitutions had been defeated by the people. There 
was the usual amount of charges of intimidation made against 
the validity of these elections by the radical or Republican 
leaders in these States. But their attempt to have the Consti- 
tution fastened on the people failed. Whether this failure 
came from a reawakened conscience on the part of the leaders 
of the majority in Congress, or from the safe position they 
deemed themselves to have acquired by the reconstruction and 
admission of the seven other Southern States, it is needless 
to inquire. The majority in Congress of the Republicans, 
already overwhelming, had been largely increased by these 
reconstructed States, every one of which had sent Republican 
Senators and Representatives. 

The Forty-first Congress met on March 4, 1869, the day 
on which General Grant was inaugurated President. All the 
States had been "reconstructed" except the three, — Texas, 
1 The Coercion of Virginia, Texas, and Mississippi. 



266 The Political History of Slavery in the United States 

Virginia, and the State of Mississippi. On April 10, 1869, 
an Act was passed authorizing a resubmission of the rejected 
Constitutions of these States for ratification or rejection by 
the people, with power given to the President to submit to a 
separate vote such provisions of said Constitutions as he 
should deem proper. 

By Section 6 of the Act it was provided that before any one 
of these States should be admitted to representation its Legis- 
lature should ratify the Fifteenth Amendment. 1 

On May 14, 1869, the President issued his proclamation 
submitting the Constitution of Virginia, and designated two 
clauses thereof for separate submission. In order to show 
the animus of these reconstructed governments, it is needful 
to set out these provisions thus separately submitted. 

The first was in these words, being a part of the fourth 
clause of Article III of the Constitution of Virginia: "Every 
person who was a Senator or Representative in Congress, or 
elector of President or Vice-president, or who held any office, 
civil or military, under the United States, or under any State, 
who, having previously taken an oath as a Member of Con- 
gress, or as an officer of the United States, or as a member 
of any State Legislature, or as an executive or judicial officer 
of any State, shall have engaged in insurrection or rebellion 
against the same, or given aid and comfort to the enemies 
thereof. This clause shall include the following officers : 
Governor, Lieutenant Governor, Secretary of State, Auditor 
of Public Accounts, Second Auditor, Register of the Land 
Office, State Treasurer, Attorney General, Sheriff, Sergeant 
of a city or town, Commissioner of the Revenue, County Sur- 
veyor, Constables, Overseers of the Poor, Commissioner of 
the Board of Public Works, Judges of the Supreme Court, 
Judges of the Circuit Court, Judges of the Court of Hustings, 
Justices of the County Court, Mayor, Recorder, Aldermen, 
Councilmen of a city or town, Coroners, Escheators, Inspect- 
ors of tobacco, flour, etc., Clerks of the Supreme, District, Cir- 
cuit, and County Courts and of the Court of Hustings, and 
attorneys for the Commonwealth; Provided that the Legis- 
lature by a vote of three-fourths of both Houses remove the 
disabilities incurred by this clause from any person included 
therein by a separate vote in each case." 

1 16 U. S. Statutes at Large, Chapter XVII, p. 41. 



The Fifteenth Amendment 267 

This clause contained the enumeration of officials who 
were to be excluded from voting in Virginia. 

The other separate submission was of the seventh section 
of Article III of the Constitution, which prescribed the oath 
of officers in said State. What remained of the oath is as 
follows : 

"I do solemnly swear that I will support and maintain the 
Constitution and laws of the United States and the Constitu- 
tion and laws of the State of Virginia; that I recognize and 
accept the civil and political equality of all men before the 
law, and that I will faithfully perform the duties of the office 
of .... to the best of my ability." 

The part separately submitted was in the following words : 

"In addition to the foregoing oath of office, the Governor, 
Lieutenant Governor, Members of the General Assembly, 
Secretary of State, Auditor of Public Accounts, State Treas- 
urer, Attorney General, and all persons elected to any con- 
vention to frame a Constitution for this State, or to amend or 
revise this Constitution in any manner, and the Mayor and 
Council of any City or Town, shall, before they enter into the 
duties of their respective offices, take and subscribe the fol- 
lowing oath or affirmation, provided the disabilities therein 
contained may be individually removed by a three-fifths vote 

of the General Assembly. I, , do solemnly swear 

(or affirm) that I have never voluntarily borne arms against 
the United States since I have been a citizen thereof; that I 
have voluntarily given no aid, countenance, counsel, or en- 
couragement to persons engaged in armed hostility thereto; 
that I have never sought nor accepted nor attempted to exer- 
cise the functions of any office whatever, under any authority 
or pretended authority in hostility to the United States ; that 
I have not yielded a voluntary support to any pretended gov- 
ernment authority, power, or Constitution within the United 
States hostile or inimical thereto. And I do further swear 
(or affirm) that to the best of my knowledge and ability I 
will support and defend the Constitution of the United States 
against all enemies, foreign and domestic; that I will bear 
true faith and allegiance to the same ; that I take this obliga- 
tion freely without any mental reservation or purpose of 
evasion, and that I will well and truly discharge the duties of 
the office on which I am about to enter, so help me God. The 



268 The Political History of Slavery in the United States 

above oath shall also be taken by all the city and county offi- 
cers before entering upon their duties, and by all other State 
officers not included in the above provisions." 

The Constitution was ratified, with the above provisions, 
separately submitted, voted out. 

On July 13, 1869, the President by proclamation resub- 
mitted the Constitution of Mississippi, with separate voting 
as follows : 

First. A part of Section 3, Article VII, of the Con- 
stitution which prescribed the oath to be taken by all persons 
as a qualification for registering to vote in these words : 
"That I am not disfranchised by any of the provisions of the 
Acts known as the Reconstruction Acts of the Thirty-ninth 
and Fortieth Congresses, and that I admit the civil and politi- 
cal equality of all men, so help me God : Provided that if 
Congress shall at any time remove the disabilities of any per- 
sons disfranchised in the said reconstruction Acts of the 
Thirty-ninth and Fortieth Congresses (and the Legislature of 
this State shall concur therein), then so much of this oath, 
and so much only as refers to the said Reconstruction Acts, 
shall not be required of such person, so pardoned, to entitle 
him to be registered." 

Second. Section 5 of the Constitution was also submitted 
separately. It was in the following words : 

"No person shall be eligible to any office of profit or trust, 
civil or military, in this State, who, as a member of the Legis- 
lature, voted for the call of the convention that passed the 
ordinance of secession, or who, as a delegate to any conven- 
tion, voted for or signed any ordinance of secession, or who 
gave voluntary aid, countenance, counsel, or encouragement to 
persons engaged in armed hostility to the United States, or 
who accepted or attempted to exercise the functions of any 
office, civil or military, under any authority or pretended gov- 
ernment, authority, power, or Constitution within the United 
States, hostile or inimical thereto, except all persons who 
aided Reconstruction by voting for this convention or who 
have continuously advocated the assembling of this convention 
and shall continuously and in good faith advocate the acts of 
the same ; but the Legislature may remove such disability : Pro- 
vided that nothing in this section, except voting for or signing 
the ordinance of secession, shall be so construed as to exclude 



The Fifteenth Amendment 269 

from office the private soldier of the late so-called Confed- 
erate States army." 

Third. A part of the oath of office contained in Section 
26, Article XII of the Constitution, was submitted to a sepa- 
rate vote. This was in the following words : 

"That I never as a member of any convention voted for 
or signed any ordinance of secession; that I have never as a 
member of any State Legislature voted for the call of any con- 
vention that passed any such ordinance. 

"The above oath shall also be taken by all city and county 
officers before entering upon their duties, and by all other 
State officers not included in the above provision." 

There was also separately submitted Section 5, Article 
XII of the Constitution, which was in the following words: 

"The credit of the State shall not be pledged or bound in 
aid of any person, association, or corporation, nor shall the 
State hereafter become a stockholder in any corporation or 
association." 

The Constitution was ratified with the above provisions 
separately submitted, except the last, — Section 5, Article XII, 
which was voted down. 

On July 15, 1869, the President by proclamation resub- 
mitted the Constitution of Texas, but without making any 
separate submission of any part of it. On that submission it 
was ratified. 

It is needful to a proper understanding of the events I 
have alluded to, to give some account of the passage of the 
Act authorizing the resubmission of these Constitutions in 
the three States of Texas, Virginia, and Mississippi. 

Early in the first session of the Forty-first Congress, Mr. 
Butler, of Massachusetts, from the Reconstruction Commit- 
tee, introduced a bill to reconstruct the State of Mississippi. 
It is not necessary to set out more of this bill than to state 
that further reconstruction proceedings in that State were 
required to be taken by the Constitutional Convention that had 
framed the rejected Constitution. A leading Republican, Mr. 
Farnsworth, expressed some opposition to the bill and a pref- 
erence for a postponement of the matter until the next session. 
As showing the animus of the movement, Mr. Butler said: 

"Let me say, if we postpone it, we peril, in my judgment, 
not only the interest of Mississippi, but the interest of free- 



270 The Political History of Slavery in the United States 

dom and human rights throughout the nation. If Mississippi 
is reconstructed, as under this bill she will be, in the interest 
of freedom, the Fifteenth Amendment will be passed by the 
constitutional majority of three-fourths of the States. If 
we leave out Mississippi, we may not be able to get that ma- 
jority." x 

Mr. Farnsworth suggested in reply that if Mississippi 
were not reconstructed she need not be counted as one of the 
States on the question of ratification. 

Mr. Butler replied, suggesting that Mississippi, if recon- 
structed, might and probably would ratify the Fifteenth 
Amendment, but if not reconstructed, she might be counted as 
against it, because she was not one of the three-fourths re- 
quired to assent. Then he proceeded : "Let us not have the 
question open what States will be counted against us. I never 
want to see that brought to a test after we have gone as far 
as we have. I would rather take the chance of Mississippi 
being against us than take chance of having our constitutional 
provision for equal rights depend upon the decision of that 
great question of constitutional law over which nobody but 
the whole people can have jurisdiction, and which may be 
brought to a very stern arbitrament at some future time, 
whether these States are in or out of the Union for such 
purpose." 2 

Mr. Beck, of Kentucky, then made a great speech against 
the bill, in favor of further reconstruction proceedings under 
the control of the President. He introduced many interesting 
facts showing the infamy of the convention when it was as- 
sembled : how they had assumed unwarranted power, espe- 
cially in the levying of extraordinary and illegal taxes. It is 
impossible to abstract this speech, but the reader is referred 
to it. 3 His attack was so vigorous that this bill was defeated. 
A new bill, embracing all the three States of Virginia, Texas, 
and Mississippi, was introduced and was passed in substance 
the same as the Act of April 10, 1869. now is, except as to 
two important amendments made in the Senate. 4 The bill 
passed the House on April 8, 1869, — yeas 125, nays 25. 5 

On the next day, April 9, it came up in the Senate. 

1 Congressional Globe, 1st Session, 41st Congress, p. 255. 

2 Ibid., p. 255. * Ibid., p. 633. 

3 Ibid., p. 255 et seq. 6 Ibid., p. 636. 



The Fifteenth Amendment 271 

Immediately Mr. Morton moved to amend by adding an 
additional section as follows : 

"That before the States of Virginia, Mississippi, and 
Texas shall be admitted to representation in Congress, their 
several Legislatures, which may be hereafter lawfully or- 
ganized, shall ratify the fifteenth article which has been pro- 
posed by Congress to the several States as an amendment to 
the Constitution of the United States." * 

In the House no attempt was made to insert a similar pro- 
vision. It will be remembered that, though General Butler 
deemed the reconstruction of Mississippi important in order 
to secure her assent to the Fifteenth Amendment, and that 
without such assent the loss of that amendment was possible, 
yet he did not, nor did the House, consider that this new condi- 
tion was proper to be imposed on that State. 

On the offering of the amendment, Mr. Trumbull opposed 
it, saying: "Congress, after very great deliberation, passed 
several bills on the subject of the reconstruction of the late 
rebel States, and proposed to them certain conditions, on com- 
pliance with which they were to be restored to their former 
relations with the Union, and this is the imposition of a new 
condition. When is this to stop? Is Congress at each session 
to impose a new condition when the States have gone on to 
take action under the laws as Congress enacted them?" He 
asserted his belief that these States would ratify the Fifteenth 
Amendment. "But," said he, "upon principle it is wrong 
.... to require it in advance. It is imposing a new condi- 
tion ; it is breaking faith on the part of the Government of the 
United States with these people, who have been proceeding 
under our acts to do those very things on the completion of 
which you have told them, 'You shall be restored to your rela- 
tions with the Union.' " 2 

Mr. Morton, in reply, claimed that his amendment was no 
breach of faith. "These States have not accepted the condi- 
tions we proposed to them. How are we bound ? They have 
accepted nothing; but they have stood out in hostility up to 
this time against the terms we have offered. . . . 

"Some of the reconstructed States would not have ratified 
the fourteenth article, if they had not been required to do it 

1 Congressional Globe, 1st Session, 41st Congress, p. 653. 

2 Ibid., p. 654. 



272 The Political History of Slavery in the United States 

as a condition of representation. These States have stood 
out ; they have been hostile to our plan of reconstruction until 
another amendment has become necessary. . . ." 

This was said because these States had voted down Con- 
stitutions containing the provisions of disfranchisement and 
dishonor that we have copied and that were more severe than 
was required in the reconstruction Acts. So severe indeed 
were they that General Grant, under the Act of Congress, sub- 
mitted these provisions to a separate vote. 

Mr. Morton, however, exposed the true motive for the 
amendment as he proceeded further in his speech. 

He said : "It is important that we have this question set- 
tled, that it shall not hang over the States for the next four 
years. 

"So far as I am concerned, I would rather see this bill 
fail than to pass without this amendment attached to it. I 
would rather see the whole matter go over to the next session 
of Congress. I will speak frankly here on the subject. I 
know what the expectation of the opposing party is. They 
know the prejudice that has existed in the Western States in 
regard to Negro suffrage, and I know that the Democratic 
party desire to keep this question open as an element of po- 
litical success in the elections of 1870 and '72." He then 
referred to the action of the Democratic members of the Leg- 
islature of Indiana in resigning in order to prevent a quorum, 
and thereby prevent action on the amendment. "They have 
made the calculation that without the votes of Virginia, Texas, 
and Mississippi the amendment cannot be ratified unless it 
receives the vote of Indiana. Indiana they regard, therefore, 
as a pivotal State upon which the ratification of the amend- 
ment is to turn; but if it shall be ratified by these three unre- 
constructed States, it will then become a part of the Consti- 
tution without the vote of Indiana. . . . 

"Now, sir, if we shall make the ratification of the fifteenth 
article a condition of the reconstruction of these States, just 
as we did the ratification of the fourteenth article, these States 
will accept it at once ; they will ratify it without a moment's 
delay, and then it will become a part of the Constitution; the 
question will be taken out of our politics forever, and the 
Democratic revolution in Indiana will have failed ; otherwise 
the question will be kept open during the elections of 1870 



The Fifteenth Amendment 273 

and 1872. Therefore, I repeat, I would rather see this bill 
fail and the whole matter go over until the next session of 
Congress than to have it pass without this amendment. Sir, 
it is right in itself. There is no breach of faith involved. 
It is of vast importance to the country, and it is of vast im- 
portance to the party to which I claim to belong." x 

Mr. Morton made no concealment. He spoke, as he said, 
frankly. He wanted the amendment requiring these three 
Southern States to ratify the amendment because it might be 
necessary to have their votes to secure its ratification. He 
feared to encounter the opposition in the Western States to 
Negro suffrage in the elections of 1870 and 1872. He con- 
sidered its ratification by these States as of vast importance 
to his party, and he was for forcing them to ratify. 

Mr. Conkling controverted Mr. Morton's position that 
the passing of his amendment would be no breach of faith. 
He stated that Virginia was prevented by Congress from ac- 
cepting the Fourteenth Amendment. 

"In consequence of her calamity alone, with no default, 
unless it be our default, she is not here." He said that this 
new condition was never thought of by the Republicans and 
never hinted to any of the Southern States. He declared 
himself a friend of the Fifteenth Amendment, but he "ear- 
nestly" hoped that "no process involving the force .... of 
this proposition will be resorted to as a means of promoting 
that amendment." "If," he continued, "it can be carried at 
all, it must be carried before the honest sense, the enlightened 
judgment of the American people; and as far as it is, even 
by inadvertence, associated with unfair dealing, with a breach 
of faith, with an act which would be deemed overreaching 
between man and man and recreant looking to the plighted 
faith of a great Government [sic] so far as it is associated 
with anything like that, in so far it is contaminated by a 
stigma and a distrust which ought not to rest upon it." 

Mr. Thurman opposed the amendment with great force. 
He declared that the amendment did not concern Texas, Vir- 
ginia, and Mississippi, but every State in the Union. The 
power given to Congress is simply a power to propose amend- 
ments to the Constitution, and when Congress has executed 
that power, it is functus officio. It has no right to coerce 

1 Congressional Globe, 1st Session, 41st Congress, p. 654. 



274 The Political History of Slavery in the United States 

the States into action on them. "The States are entitled to 
their free and unbiased judgment upon the proposition that 
Congress is authorized to submit. The power of Congress 
is at an end when it has made the proposition. But now the 
Senator from Indiana proposes that Congress shall not only 
propose an amendment to the Constitution, but that Congress 
shall coerce three States into the adoption of that amendment, 
not for themselves alone, but for every State in the 
Union." 

He continued : "When you coerce Virginia, Mississippi, 
and Texas to put this article in the Constitution .... you 
do not coerce them alone. You coerce Ohio, you coerce Indi- 
ana, you coerce Illinois, you coerce every State whose people 
are unwilling to adopt the amendment." 

He said that, as he understood the Senator, it was for the 
express purpose of coercing Indiana that he wished his amend- 
ment to be inserted in the bill. 

Mr. Morton explained that it was not to override the peo- 
ple of Indiana, but to override a revolutionary movement in 
Indiana that he offered his amendment. 

Mr. Thurman replied that Mr. Morton's explanation did 
not relieve the difficulty. "If the people of Indiana are in 
favor of ratifying the Fifteenth Amendment to the Constitu- 
tion, why is the Senator from Indiana afraid to trust them 
with the question? Why does he wish this question passed 
upon by a Legislature that was elected upon no such issue, 
that was elected upon the Chicago platform, which declared 
that to every loyal State, — and he will not deny that Indiana 
is a loyal State, — belonged the right to decide for itself who 
should enjoy the privilege of suffrage within it? It was upon 
that solemn pledge that you got a Republican majority in the 
State of Indiana; a State that not only voted against Negro 
suffrage, but adopted its present Constitution, by which Ne- 
groes are even prohibited from migrating to the State, by 
ninety-one thousand majority. Now, I say, if the people of 
Indiana are in favor of the amendment, they can be trusted to 
adopt it." 

Mr. Thurman, replying to the statement that the resigna- 
tion of the Democratic members of the Legislature of Indiana 
to break a quorum in order to defeat ratification of the amend- 
ment was revolutionary, referred to a similar action once 



The Fifteenth Amendment 275 

taken in Ohio by the Whig members of the Legislature to 
defeat an unjust apportionment. He continued : "There are 
times when it is the duty of a minority to prevent the passage 
of an Act which they firmly believe is contrary to the will of 
the people of their State. It is a lawful mode. ... I grant it 
is a measure to be resorted to only in the last resort ; it is an 
extreme measure; but no man is bound to hold office. If he 
sees fit, therefore, to resign his office in order to allow the 
people to pass upon a question, there is no right to say that 
that is a revolutionary measure. How do the people of Indi- 
ana think about it, pray? Every man who resigned has been 
returned to his seat in that Legislature. In almost every 
district those in favor of the Fifteenth Amendment did not 
even dare to run a candidate. In one district they did ; and 
that was a district which had been changed after the election 
of the Senator, by striking off, I believe, a Democratic county 
and putting on a Republican county, and the district was 
largely Republican at the last Presidential election. What was 
the result in that district? A most eminent man was set up 
by the Republican party against the resigning Senator, — a man 
of character, of talents, a man remarkable for his power on 
the stump as I am told, an elector for President, I think, at 
the last election in Indiana ? What was the result in that dis- 
trict, now largely Republican? Why, sir, that man was beaten 
some four, five, or six hundred votes. I think, then, it may 
be well assumed here that the people of Indiana are not in 
favor of the Fifteenth Amendment." * 

Mr. Morton did not controvert these statements of Mr. 
Thurman. 

The amendment of Mr. Morton was adopted by yeas 30, 
nays 20. Among the nays were Messrs. Anthony, Conkling, 
Edmunds, Fenton, Ferry, Fessenden, and Sprague. 

Messrs. Sherman and Howard, notwithstanding they had 
declared, as we have seen, that the imposition of another con- 
dition, even a "jot or tittle," would be a gross breach of faith 
on the part of Congress, voted in the affirmative. 

Mr. Edmunds then moved an amendment in these words : 

"That the proceedings in any of said States shall not be 
deemed final, or operate as a complete restoration thereof, un- 
til their action, respectively, shall be approved by Congress." 

1 Congressional Globe, 1st Session, 41st Congress, p. 655. 



276 The Political History of Slavery in the United States 

This was agreed to. 1 Then two of the Senators, — Mr. 
Davis, of Kentucky, and Mr. Fowler, of Tennessee, — made 
strong speeches against the bill. 

Mr. Bayard spoke in opposition to the bill. He said : 
". ... I do not propose to discuss the condition of the people 
of these three Southern States so-called. I could not trust 
myself to do it, and run through the dreary, wretched cata- 
logue of wrongs to which they have been subjected. It was 
truly said by the Senator from Oregon [Mr. Williams] in 
reply to a remark of the Senator from New York [Mr. Conk- 
ling] that it was too late upon this floor to talk of good faith 
to the people of the Southern States. Alas! sir, that is too 
true ; for it would be idle to talk of keeping faith when the 
lips that profess it have violated it so often toward them." 2 

In replying to Mr. Conkling, as above alluded to, Mr. 
Williams had said : "The objection made is, as I understand 
it, that it will be regarded as a breach of good faith toward 
the States not now reconstructed, to incorporate such an 
amendment [Mr. Morton's] into this bill, but I think it is too 
late in the day to talk about good faith in reference to these 
States." 3 He then proceeded to accuse Mr. Conkling of a 
breach of that faith, which Mr. Conkling denied. 

Mr. Bayard next spoke of the effect of this Fifteenth 
Amendment upon the other States, and he declared "that your 
proposed submission of the Fifteenth Constitutional Amend- 
ment to the untrammeled vote of the different States is turned 
to dust and ashes ; when you yourselves create the votes that 
shall overcome the natural majority against you. Congress, 
by its own terms, usurps the power to cast the votes of three 
States in the interests of a partisan majority; and that you call 
a ratification under the Constitution of an amendment of a 
fundamental law." 4 

Mr. Bayard claimed that it had been demonstrated by 
Mr. Thurman that coercion of the Southern States was also 
a coercion of the Northern States. 

He said : "Talk of the free choice of Indiana, Ohio, or 
New York ! What is it, when Congress can by law insist that 
the votes of certain States shall be cast in opposition to it? 
All freedom is gone, sir, when Congress adopts such a meas- 

1 Congressional Globe, 1st Session, 41st Congress, p. 657. 
3 Ibid., p. 660. " Ibid., p. 654. * Ibid., p. 660. 



The Fifteenth Amendment 277 

ure as this ; it is doing nothing less than playing with cogged 
dice. It is the intention, therefore, by a measure like this to 
destroy, first, all shadow of freedom in the exercise of their 
opinions by the people of these three States, and next, having 
destroyed that, to make their votes the instrument whereby 
you crush out the sentiment of the Northern States. Per fas 
aut nefas seems to me to be the rule by which this amendment 
is to be forced on the American people ; and the question will 
come up, — it cannot be long kept down, — how any law, how 
any amendment obtained by means like this, can be binding 
upon the conscience of a people who have either the sense or 
the manhood to remain free." 1 

The bill as amended passed, — yeas 44, nays 9. Messrs. 
Trumbull and Conkling voted for it, notwithstanding the 
breach of faith involved in it. 

In the House the Senate amendments were concurred in 
by a vote of 107 yeas to 39 nays. There was no debate. 2 

So the States of Virginia, Texas, and Mississippi were co- 
erced into voting for the Fifteenth Amendment. Without the 
vote of at least one of these States the Fifteenth Amendment 
would have failed to pass. 

1 Congressional Globe, 1st Session, 41st Congress, p. 660. 

2 Ibid., pp. 699-700. 



APPENDIX 
VIEWS 

OF THE 

MINORITY OF THE JUDICIARY COMMITTEE 

OF THE 

UNITED STATES SENATE 

ON 

The Constitutional Questions Involved in the Bill to 
Provide for Inquests Under National Authority 



In the Senate of the United States. 
February 25, 1887. — Order to be printed. 
Mr. George, from the Committee on the Judiciary, sub- 
mitted the following 
VIEWS OF THE MINORITY 
Which he Wrote 
[To accompany bill S. 2 171.] 



280 The Political History of Slavery in the United States 

The undersigned, a minority of the Committee on the 
Judiciary, are unable to agree with the majority as to 
either the expediency or the constitutionality of Senate 
bill No. 2 171, "to provide for inquests under national au- 
thority." 

Sanctioned as the bill is by a majority of the members of 
this committee, it comes before the Senate with the prestige 
of the high character and eminent abilities of its framers and 
supporters. In opposing it on constitutional grounds we 
admit that it is incumbent on us to show by the clearest rea- 
soning and the highest judicial authority that this bill is, as 
we believe it to be, unwarranted by the Constitution, and, if 
enacted, would be a grave and serious usurpation by Con- 
gress of essential powers reserved to the States, and that the 
means by which the inquest is to be made are equally in vio- 
lation of that instrument. 

This must be our apology for that elaboration of argu- 
ment necessary to make due and proper inquiry into and 
examination of the questions involved in the bill. 

The bill provides that on the application of any three citi- 
zens of the State in which the injury shall be committed the 
United States circuit judge shall order a special term of his 
court to be held, and shall then summon witnesses and in- 
quire into the facts connected with any alleged homicide com- 
mitted, or serious bodily harm, or serious injury in person 
or estate, perpetrated or threatened, where such offense has 
been committed: (1) "Because of the race or color of such 
person so killed, injured, or threatened; (2) or because of 
any political opinion which such person so killed, injured, or 
threatened may have held in regard to matters affecting the 
general welfare of the United States; (3) or with design to 
prevent such person so killed, injured, or threatened, or oth- 
ers, from expressing fully such opinion; (4) or from voting 
as he or they may see fit at any election of officers whose 
election is provided for by the Constitution and laws of the 
United States; (5) or to affect the votes of such person or 
others at such elections." 

And the bill further requires the judge to report the evi- 
dence thus by him taken, and his conclusion of facts thereon, 
to the President of the United States, to be by him laid be- 
fore Congress. 



The Minority Report 281 

No other action by the judge or court is required or even 
contemplated. 

The theory of the bill, however, must necessarily assume 
that Congress may, when the report is submitted to it, make it 
the basis of legislative action in respect to all the matters 
named in it. That is, the bill asserts a power in Congress to 
legislate for the protection of the rights and for the punish- 
ment of the wrongs specified in it. These alleged rights, ex- 
cept in the two last clauses, which refer alone to voting at 
Federal elections, are the right to security in person and 
estate against assaults made or threatened by the wrongful 
acts of private individuals, if such assaults were made because 
of race or color or of holding or expressing political opin- 
ions. Or, in other words, jurisdiction is asserted in the Fed- 
eral Government over all injuries to person or property, com- 
mitted or threatened, where the perpetrator and the victim 
are not both of the same race and also of the same political 
party. For it is manifest that where they are of different 
races and of different political parties it will be impossible, 
as to the former at all times, and as to the latter in times 
(very frequent and prolonged) of high political excitement, 
to eliminate these circumstances from such transactions. 

But the bill even goes further than this. If three men can 
be found in a State who will make oath according to their 
belief that any conflict, either actual or apprehended, any in- 
jury to person or estate, consummated or threatened, had for 
its basis any of the reasons and the causes mentioned in the 
bill, the court must undertake the investigation "into the cir- 
cumstances" of such killing, injury, or threatening, and re- 
port the evidence taken and the conclusions of fact to the 
President, notwithstanding it may be established that the 
transaction, whatever it may be, had no such cause or basis, 
and was in fact between persons of the same race and color 
and of the same political party, and was the result of causes 
wholly different from those mentioned in the bill, and even 
of causes which rendered the conduct of the actor entirely 
justifiable. 

The bill contains so serious an attack on the power, juris- 
diction, and dignity of the States, is so harmful in its effects, 
so utterly at variance with the Constitution, and being di- 
rected in the main, as this avowedly is, against the Southern 



282 The Political History of Slavery in the United States 

States exclusively, that we feel that we are not only war- 
ranted, but required, to make such examination into the pow- 
ers, jurisdictions, and rights of the States, and the powers of 
Congress, as may be necessary to defeat it. 

We shall therefore inquire as to the depository nature 
and extent under our system of the governmental powers to 
protect the rights of persons and property against assaults 
and violations by private individuals, when such wrongs are 
committed or threatened within the limits or jurisdiction of 
a State. To make this examination full and perfect it is 
necessary to consider somewhat carefully the nature, pur- 
poses, and objects, as well as the powers of the Government 
of the United States, in connection with the powers and du- 
ties of the States; and also the scheme of government which 
the two combined have formed. 



FEDERAL AND STATE GOVERNMENTS BOTH PARTS OF A WHOLE 

The Federal and State Governments are complements of 
each other; both are essential parts of a whole. To conceive 
a government having sole jurisdiction over a people, but with 
no other powers than those granted to the Federal Govern- 
ment by the Constitution of the United States, would be to 
conceive an anomaly as well as an impotent abortion. Such 
a government would possess no power over contracts, over 
marriage and divorce, the civil relations of husband and wife, 
over descents, inheritances, and testaments, over titles and 
tenures to property, over the great fundamental rights of 
life, liberty, and property, and the pursuit and acquisition of 
happiness. On the other hand, a government considered as 
a whole and not as a complement of another, which pos- 
sessed no other powers than those now belonging to the 
States, would be utterly powerless outside its own territorial 
domain and without essential powers within it. It could pos- 
sess no army, no navy, grant no patents or copyrights, coin 
no money, emit no bills of credit, fix no standard of weights 
and measures, levy no tonnage, duties, or taxes on imports or 
exports, receive or send no ambassadors, ministers, or con- 
suls, enter into no treaties or alliances, nor regulate in any 



The Minority Report 283 

way commerce between itself and other states or foreign na- 
tions. It could neither make war nor conclude peace. 

"We have in our political system," says Chief Justice 
Waite, in United States v. Cruikshank, 92 U. S., p. 549, "a 
Government of the United States and a government of each 
of the several States." And Judge Miller, in the "Slaughter- 
House Cases" (16 Wall., p. 82), said that "the existence of 
the States was essential to the perfect working of our com- 
plex form of Government" ; complex in this, that we have 
two distinct governments, operating on and regulating the 
rights and duties of the same people, each having distinct and 
separate powers, and charged with distinct and separate du- 
ties. No citizen of a State can look to either government for 
the measure of his allegiance, or as the sole protector of his 
rights. The system is, that the people of each State may 
with exact truth be said to have two constitutions, — one their 
own separate constitution, under which they exercise State 
powers and perform State duties solely, and according to 
their own judgment as to what is best for the common weal ; 
the other the Constitution of the United States, which is 
the common Constitution of each and of all the States, and 
under which each discharges Federal functions in connection 
with its sister States. Both are essential to perform the full 
measure of governmental functions and protect and secure 
the people in all their rights. Chief Justice Waite, in United 
States v. Cruikshank (92 U. S., p. 550), speaking for the 
Supreme Court, used this expressive language : 

"The people of the United States resident within any 
State are subject to two governments, — one State, one na- 
tional. The powers which one possesses the other does not. 
They were established for different purposes, and have sepa- 
rate jurisdictions. Together they make one whole, and fur- 
nish the people of the United States with a complete Govern- 
ment, ample for the protection of all their rights at home and 
abroad." 

This great and fundamental truth is so often obscured 
and neglected in practice that we deem it our duty to en- 
deavor to recall it to the attention of the Senate and of the 
country. 



284 The Political History of Slavery in the United States 



THE UNITED STATES THE FINAL JUDGES OF THEIR OWN 

POWERS 

It is no part of our purpose to reopen the question of 
State rights, as settled by the late war. Whatever of power 
was lost to the States by that conflict, we acknowledge is lost 
irrevocably ; whatever was gained in it by the United States 
is an acquisition that we shall not attempt to disturb. What- 
ever may be the mere historical truth as to the mode of the 
formation of the Federal Constitution, — whether it was crea- 
ted by the people of the several States, or by the people of 
the United States aggregated in one mass, — it is now no 
longer a matter of dispute, that the powers granted to the 
Federal Government by the Constitution of the United States 
are irrevocable except by successful revolution. It is also 
now established that the Government created by it is, through 
its Judicial Department, the final judge of the extent of all 
its granted powers which can by their nature come under 
review in a case in a court, and that the political departments 
of the Government are the final judges of the extent of all 
the other granted powers. The right of State interposition 
to arrest usurpation by the Federal Government, whether by 
nullification or secession, if it ever existed, has now gone 
forever. We concede this fully and unreservedly. 

This great power of final arbitrament carries with it the 
highest and most solemn duty to judge carefully, — impar- 
tially, — not to usurp on the one hand powers not granted, nor 
on the other to abdicate duties imposed on the Government 
by the Constitution. The people have a right to demand 
that the agents and officers of the Federal Government, 
which, though limited in the number of its powers, is su- 
preme wherever its powers extend, shall be careful not to 
disturb or disarrange the scheme of government which they 
ordained, nor alter the divisions of powers between the two 
governments which they have established. 

THE STATES ESSENTIAL BASES OF OUR SYSTEM 

The Federal Constitution, whether framed by the people 
of the several States, — the people of each State acting for 
their State, — and as a political organization known as a State, 



The Minority Report 285 

or not, came after the formation of the States. It is based 
on the previous existence and on the subsequently continued 
life of the States. Without States then existing it could not 
have been created. It had no force as a constitution till rati- 
fied by nine States, and then only "between the States ratify- 
ing" it. After its ratification, it could not have gone into 
operation except by and through the active agency and co- 
operation of the States existing as separate political entities, 
and acting as separate and distinct political organisms. No 
President could then have been, nor can now be, constitution- 
ally elected, except by electors, whom, by the terms of the 
Constitution itself, "each State shall appoint in such manner 
as the legislature thereof may direct." No Representative 
could be elected, nor can now be, except by voters whose 
qualifications are to be fixed by the State from which he 
comes. Representatives are "apportioned among the several 
States," and Senators, "two from each State/' are "chosen 
by the legislature thereof"; and each Senator and Represen- 
tative must be "an inhabitant of that State in which (or for 
which) he shall be chosen." The words "State" and "United 
States" appear everywhere in the Constitution, in every arti- 
cle, and almost in every clause and sentence. Strike them 
from the Constitution and the Government would be without 
a name among the nations of the earth and the whole instru- 
ment would be unmeaning jargon, with no intelligent ideas 
left in it. The name of the Government itself created by 
the Constitution is "United States." The Constitution, as 
itself declares, was ordained and established "for the United 
States of America." The legislative power is vested not in 
a legislature, or parliament, or national assembly, but in "the 
Congress [that is, the meeting or assembling] of the United 
States." The executive power is vested, not in a king, or 
emperor, or consul, but in a "President of the United States;" 
all other officers are "officers of the United States/' The 
"militia of the several States" are "called into the service of 
the United States" and not into the service of the Govern- 
ment, or the President, or the Congress. The judicial power 
of "the United States/' not of the Government or Congress, 
is "vested" in courts provided for in the Constitution. These 
courts have jurisdiction "in controversies to which the United 
States shall be a party ;" and between "two or more States;" 



286 The Political History of Slavery in the United States 

and "between citizens of different States." Trials of crimes 
"shall be in the State" where committed. And "treason 
against the United States," not against Congress, the Presi- 
dent, or the Government, or the Union, is committed only 
"by levying war against them or in adhering to their ene- 
mies." Essential powers are recognized in the States, and 
equally important powers prohibited to them by that name, 
and duties are imposed on them as "States." 

In the attestation clause of the Constitution it is said : 
"Done in convention, by the unanimous consent of the States 
present," and this attestation is signed by George Washing- 
ton, as President, "and deputy from Virginia," and by the 
deputies from each of the twelve States present, each being 
separately named, Rhode Island not being present. And in 
the tenth amendment it is declared that all the powers granted 
by the Constitution are "delegated to the United States" not 
to Congress, the President, the Government, or the Union. 
And in the Fourteenth Amendment the public debt is declared 
to be the debt "of the United States," and the "United States" 
are prohibited from assuming any debt incurred in aid of 
"rebellion or insurrection against the United States," and in 
the Fifteenth Amendment "the United States" and the several 
"States" are prohibited from denying or abridging the right 
to vote in certain cases. 

Whilst it is true that the scheme of the Constitution was 
"to make us one people, with one common country, for all 
the great purposes for which it was established" as was said 
by Chief Justice Taney, it is also true, as declared by Chief 
Justice Marshall, in McCulloch v. Maryland, 4 Wheaton, 403, 
that "no political dreamer was ever wild enough to think of 
breaking down the lines which separate the States and com- 
pounding the American people into one common mass." And 
it is also true that the American people, considered as one 
common mass, and not as the people of the several States, 
cannot perform any single function or exercise any single 
political power without in effect revolutionizing our whole 
system. 

We recall these familiar truths, found on the face of the 
Constitution and expressed in its very words, because their 
import and effect seem to have lost their significance in some 
quarters. 



The Minority Report 287 

STATES ARE FREE, EQUAL, AND SOVEREIGN 

It is undisputed that the States were free, equal, sover- 
eign, and independent at the time of the formation of the 
Constitution; that each possessed all the powers which any 
government might rightfully possess. In the language of 
the Declaration of Independence, "had they full power to 
levy war, conclude peace, contract alliances, establish com- 
merce, and to do all other acts and things which independent 
States may of right do." 

As such States they formed a Union under the Articles 
of Confederation, and as such they withdrew from that 
Union, each for itself, by a separate ratification of the Con- 
stitution of the United States, and contrary to the will of at 
least two of their number. As we have said, it is probably 
immaterial whether we regard the historical truth, — that the 
States formed the Federal Constitution, — as a constitutional 
truth or not, for the main questions which depended upon 
that are settled. The truth is undeniable that each State, or 
the people of each State in their separate capacity as organ- 
ized political communities, organized into States, possessed 
at the adoption of the Constitution all governmental power. 
It is equally true that, possessing these powers, they had the 
right to alter their governments, "and to institute a new gov- 
ernment, organizing its powers in such form as to them 
shall [should] seem most likely to effect their safety and 
happiness." They did so alter and organize it, delegating 
each separate State, a part of its own powers, to be exer- 
cised by the whole, i. e., the United States, and reserving each 
to itself separately, or to its people, the great mass of powers 
not delegated. The government thus formed was a govern- 
ment of each of the States, having jurisdiction to the fullest 
extent of the undelegated and unprohibited powers, and a 
Government of the United States. The Government of the 
"United States" meant no more then, and means no more 
now, than the common or general government of the States 
of Massachusetts, New York, Virginia, and the others united. 
The phrase "United States" means no more nor less than 
the thirteen States then and the thirty-eight States now, 
united for the purposes mentioned in the instrument of Union, 
— the Constitution of the United States of America. 



288 The Political History of Slavery in the United States 
POWERS CONFERRED ON UNITED STATES SUPREME 

The common or general powers thus conferred on the 
whole (not any power usurped) are necessarily supreme as 
against any adverse separate State action. This resulted log- 
ically from the mere fact of the establishment of a common 
Constitution, since the surrender by each State, or by the 
people of each, of powers to a common agency to be exer- 
cised by such agency for the good of all the States, necessar- 
ily implied an engagement on the part of each and all to sub- 
mit to the exercise of the powers so surrendered by the 
agency appointed for all and by all. A lawful refusal to do 
this would be in itself a disruption of the common Govern- 
ment thus formed, since it would leave this common Govern- 
ment without authority to do the very thing for which it 
was established. The declaration in Article 6, that "this 
Constitution, and the laws of the United States which shall 
be made in pursuance thereof, and all treaties made, or 
which shall be made under the authority of the United States, 
shall be the supreme law of the land; . . . anything in the 
constitution or laws of any State to the contrary notwith- 
standing," is nothing more than the expression of what, with- 
out it, is an undoubted truth. 

Speaking of the supremacy of the Government of the 
Union, in McCulloch v. Maryland, 4 Wh., 405, Chief Justice 
Marshall said : 

"This would seem to result, necessarily, from its nature. 
It is the Government of all; its powers are delegated by all, 
it represents all, and acts for all." 

But whilst this is true, it is also true that this supremacy 
of the Constitution and of the laws and treaties authorized 
by it is expressly limited within the line which bounds the 
delegated powers. Beyond this the Government of the United 
States has no power whatever, and its acts outside of and 
beyond these powers are in law simply null, mere nothing. 
We quote on this point the expressive words of Chief Jus- 
tice Waite, speaking for the Supreme Court in United States 
v. Cruikshank (92 U. S., p. 550) : 

"The Government thus established and defined is to some 
extent a Government of the States in their political capacity. 
It is also for certain purposes a Government of the people. 



The Minority Report 289 

Its powers are limited in number, but not in degree. Within 
the scope of its powers as enumerated and defined it is su- 
preme and above the States; but beyond it has no existence." 
Mark the expression, — beyond its enumerated and de- 
fined powers "it has no existence." 

THE UNION IS VOLUNTARY AND OF EQUAL STATES 

Another great truth lies at the foundation of the Consti- 
tution, and which must never be forgotten or obscured in con- 
sidering the relations of the several States under it, with 
each other and with their common Government, — the Govern- 
ment of the United States. It is that this Union under the 
Constitution was in its formation the voluntary association 
of free and equal States, each free to go in or to stay out; 
each equal in its Federal and in its reserved rights ; equal 
in dignity; equal in all political capacities.- Each State ac- 
ceding to it (or the people of each State, if that expression 
be preferred) claimed the capacity to discharge all its Fed- 
eral duties arising under the Constitution, as well as its ca- 
pacity to exercise all the powers of government reserved to 
it. 

This claim was acknowledged by each and by all, and 
was, in fact, the very basis of the Union as it was formed. 
If any one of the then existing thirteen States had contrary 
convictions which rendered association and union with any 
of the others undesirable, it had the undoubted right to refuse 
accession to the Union. It had the undoubted power to de- 
cide this question for itself, and did decide it irrevocably 
when it ratified the Constitution. That decision involved and 
solemnly adjudged the essential truth that its co-States were 
such as it claimed itself to be, capable and willing to per- 
form both their Federal and their separate State functions 
without the supervision or interference of others. As to 
new States, each original State which had acceded to the 
Union agreed by the Constitution itself, — the supreme law 
of the land, — to abide by the decision of the Congress of all 
the States, and each new State in accepting admission into 
the Union made the same concessions and admissions as to 
all the other States. 

This great and fundamental truth, if it needed further 



290 The Political History of Slavery in the United States 

support, has it in the terms of the Constitution itself. That 
they all agreed should be the supreme law of the land. That 
instrument not only owes its existence to the action of the 
people of the several States ; but the continuous operation of 
the Government it established could come only from their 
voluntary action. The Constitution imposed duties on them, 
the continued performance of which was essential to the Gov- 
ernment, as has been shown. It contained no provision for 
a failure of any State to discharge its Federal functions, but 
it assumed that all would, and it left to each as a matter for 
its sole concern, the discharge of its own separate State 
functions. It contained no provision for disfranchising 
States for a neglect of their duties, nor for compelling the 
States to perform them. It recognized no inequality and no 
incapacity, no contumacy in States, and made no provision 
and conferred no powers for such cases. 

It imposed no restrictions or limitations upon the rights 
and power of one State that were not equally imposed on all 
the others. It prescribed no duties to the States with refer- 
ence to their undoubted rights and powers over their own 
citizens. It secured no rights to citizens against adverse ac- 
tion or adverse non-action of their State, except in the impo- 
sition of prohibitions on the exercise of a few arbitrary and 
despotic powers of government, which by the common con- 
sent of free people were deemed unsafe and unfit to be exer- 
cised by any government, and which we shall notice more 
particularly hereafter. 

In the performance of this grand work, — the creation of 
the Constitution of the United States, and of the Union un- 
der it, — the grandest ever performed by any of the human 
race, there was, in the processes of its formation, in its ex- 
press or implied provisions, no arrogated superiority, no as- 
sumed mastery on the part of any State, or the people of 
any State, over any other, and no distrust in the ability and 
good faith of any State or its people. 

Massachusetts did not say to Virginia, "We distrust your 
ability or willingness to perform your Federal duties, or to 
govern in all that has not been surrendered by you to the 
common Government, nor prohibited to you and all other 
States alike ;" nor did Virginia doubt Massachusetts in any 
of these things. There was mutual trust and confidence all 



The Minority Report 291 

around and on all sides. Without these the Constitution 
could not have been formed, and without them cannot be pre- 
served. This confidence and trust were manifested in all 
that was done, and were attested and sealed by the declara- 
tion in the Constitution that it was the supreme law of the 
land, binding on all States, all magistrates, and all persons, 
and binding also on the agencies, the magistrates, the offi- 
cers of the common Government. 

This supremacy of the Constitution is universal, all-per- 
vading, binding equally as to its negations, the reservations 
to the States as to the powers delegated to the Union, the 
things granted and the things not granted; binding as well 
to destroy, to make null, all that might be done or assumed 
to be done by the General Government outside of and beyond 
its powers, as to invalidate any State action within this ex- 
clusive domain. It was a double guarantee, as strong and 
as explicit against Federal usurpation of powers not granted 
as against State aggression on the delegated sovereignty of 
the Union. 

We have now seen how the Constitution was formed, the 
spirit which animates its every clause, the temper, the good 
faith of men and States, their confidence in their fellow-* 
men and co-States, the concession by each and all the States 
of the capacity and willingness of the people of each to dis- 
charge their Federal and national duties, and to exercise 
justly and fairly their reserved powers, and the entire ab- 
sence of any provisions giving either to the common Gov- 
ernment or to any of the States power to interfere in or 
control the administration in any State, of its reserved powers 
or jurisdiction. We may pause a moment to contrast this 
with the provisions of the present bill, which repudiates all 
this and seeks to establish an inquisition under national 
authority into the exercise by some of the States of their 
exclusive internal domestic jurisdiction. This inquisition is 
degrading to the States in which it is expected to be carried 
on; it impeaches their capacity and willingness to perform 
their separate and exclusive functions ; it asserts, in the shape 
of a law, a supercilious and arrogant superiority on the part 
of some States over other States; it usurps a jurisdiction un- 
warranted by the Constitution. 



292 The Political History of Slavery in the United States 



POWERS OF THE UNITED STATES ARE DELEGATED 

Looking to the whole scheme of our complex system of 
Federal and State governments, we find that its primal, funda- 
mental principle, the key to its exposition is, that the powers 
possessed by the United States are "delegated," that is, given 
or granted to them, by some political organism, or organisms, 
and are in no sense inherent or original. Before any of these 
powers were thus granted, there were no powers in the United 
States, in fact no United States existed. The United States, 
as they now exist as a Government, were created by the Con- 
stitution. That instrument, in the act of making the States 
united under it, dissolved their union under the Articles of 
Confederation. 

The Tenth Amendment, adopted almost contemporaneously 
with the Constitution, and designed to put into constitutional 
form a great truth, then recognized by all, so as to prevent mis- 
take or misconception in all after times, expressly declares 
that the powers possessed by the United States are "delegated," 
and all other powers not "prohibited" to the States are "re- 
served," not granted, not given, but "reserved" to the "States 
respectively"; not to the States in a mass, or aggregated, or 
united, but to the States "respectively," or to the people. The 
powers are not even said to be "vested" in the United States, 
when reference is made to their origin. They are only "dele- 
gated," and then they are said to be "vested" in the Govern- 
ment, and in its various departments as a consequence of this 
delegation. The powers thus "delegated" are not the great 
mass of the powers of government, with exceptions in favor 
of the States, but they are enumerated, specified, written in the 
Constitution itself, and defined and limited by it. 



THE GENERAL SCHEME OF THE CONSTITUTION 

The scheme of the Constitution was to make us "one peo- 
ple, with one common country, for all the great purposes for 
which it was established." (See Chief Justice Taney in Pas- 
senger Cases, 7 How. R., 283.) 

These great purposes are expressed in the Constitution it- 
self, in the powers delegated by it to the United States. These 



The Minority Report 293 

powers are plenary and exclusive as to all that concerns the 
people and States in their relations with foreign powers, both 
in peace and in war, including the making of treaties, the 
receiving and sending of ambassadors, ministers, and consuls; 
making war and concluding peace ; intercourse and commerce 
with them; the protection of our people in foreign countries 
and outside of the jurisdiction of any State, and on the high 
seas. 

Secondly. The Federal powers extend to the regulation 
of relations between the States themselves and the citizens of 
each with the citizens of the others, and between each of the 
States and the United States, covering commerce among the 
States, compacts between two or more of them, the duty of 
surrendering fugitives from justice and labor, the force and 
effect in other States of public records and judicial proceed- 
ings of each State; "the securing to the citizens of each State 
the privileges and immunities of the citizens of the several 
States," when in the jurisdiction of any State of which they 
are not citizens, leaving, however, to each State to determine 
and define the rights and privileges of its own citizens, and 
securing only these same privileges so defined by a State to 
citizens of other States when they are within its jurisdiction. 

Thirdly. The power and duty to guarantee to each State 
a republican form of government, and to protect it from in- 
vasion, or, on application of the State, from domestic and 
foreign violence. These were the great purposes for which 
the Constitution was formed and adequate powers to attain 
them were granted. 

All other powers delegated to the United States are either 
merely auxiliary to these great ends and for the support and 
maintenance of the common government, or they are such as 
can conveniently and properly be exercised only by a govern- 
ment common to all the States. These auxiliary powers relate 
to the establishment of a uniform system of bankruptcy and 
naturalization laws ; the power to coin money, to regulate its 
value, and the value of foreign coins in circulation here ; to fix 
the standard of weights and measures; to grant patents and 
copyrights ; to establish post-offices and post-roads ; the power 
of taxation ; to punish counterfeiting of the current coin and 
securities of the United States ; to punish piracies and felonies 
on the high seas and offenses against the law of nations; to 



294 The Political History of Slavery in the United States 

raise and support armies and to support and maintain a navy ; 
and certain powers over the militia. 

These powers, in general terms, include all that are dele- 
gated to the United States. If we stop and consider them, we 
will see how few they are, — great indeed in importance, unlim- 
ited in degree, but very limited in number. If we abstract 
from these powers all that relate to our intercourse with for- 
eign nations, — all that concern the relations of the States with 
each other, in their character as States, and their relations to 
the Union; all that relate only to giving force, efficacy, and 
support to the United States in their exercise of their other 
powers, — we will see how infinitely small in number are all the 
remaining powers, which concern only the rights, privileges, 
and convenience of private persons, — private citizens when in 
the jurisdiction of a State. 

These powers are : 

(i) The securing to the citizens of the several States the 
privileges and immunities granted by any State in whose jur- 
isdiction they may be to its own citizens. 

(2) Jurisdiction over bankruptcy. 

(3) Jurisdiction over naturalization. 

(4) Jurisdiction over the currency. 

(5) The power to establish post-offices and post-roads. 
We look in vain to any of these powers for the power to 

enact this bill. But along with these powers come provisions 
which show the soul and spirit of the Constitution, and without 
which the Constitution either becomes a lifeless corpse or, 
having energy and vitality, is an instrument only of oppres- 
sion and wrong. These provisions recognize the absolute 
equality of the States, and secure fairness and impartiality in 
the exercise of the powers granted by the Constitution. Thus, 
direct taxes are required to be apportioned among the States 
according to their population, and all duties, imposts, and ex- 
cises are required to be uniform throughout the United States ; 
no preference is allowed in any regulation of commerce or 
revenue to the ports of one State over the ports of another; 
the levying of a tax on any article exported from any State is 
also prohibited, whereby the dangerous power of taxing ar- 
ticles mainly produced in one State or section and not in 
others is denied to the Government. 

And then there is the great provision in Article 5, which 



The Minority Report 295 

secures absolutely and forever the equal suffrage in the Senate 
of each State against even an amendment of the Constitution. 
Under this guarantee of equality Delaware, Rhode Island, and 
Nevada each have the same voice in this body as the great 
State of New York, and under it the six New England States, 
with a population entitling them only to 24 Representatives 
out of 325 allotted to all, have twelve Senators, whilst all 
the other States, with a population entitling them to 301 Rep- 
resentatives, have together only 64 Senators. New England 
has one Senator for a population entitling her to two Repre- 
sentatives, whilst the remainder of the States have one Senator 
to a population represented by 4.54 Representatives, or more 
than twice as much per capita of population. 

POWERS PROHIBITED TO THE STATES 

The scheme of the Constitution embraces not only a di- 
vision of powers between the several States and the United 
States by delegation of certain specified powers to the latter, 
and a reservation of the others to the States, but it includes 
also the prohibition of certain powers to both. These powers, 
so far as they relate to persons, were deemed despotic in their 
nature, unjust in their operation, and contrary to the genius 
of free government; and hence, whilst prohibiting their exer- 
cise by the Federal Government, the States also surrendered 
them as a pledge of their fidelity to the great principles of re- 
publican liberty. Three of these powers related to the lives 
and liberties of persons, namely, bills of attainder, ex post 
facto laws, and the suspension of the great writ of habeas 
corpus; one to property, viz., laws impairing the obligation o\ 
contracts; and the other related only to the quality of persons 
in a free government, namely, the bestowing titles of nobility. 
These powers were refused to both. The power over con- 
tracts, however, was allowed to the Federal Government, in- 
directly, in its power over bankruptcy. 

There were some other prohibitions to the States, but they 
were manifestly introduced for the purpose of preventing a 
conflict between State powers and Federal powers, which 
might, but for the prohibition, have been concurrent. In all 
these there is not a pretense for the claim of the Federal Gov- 
ernment to intervene between a State and its citizens for the 



296 The Political History of Slavery in the United States 

protection and security of the great fundamental rights of 
persons and property and the pursuit and acquisition of hap- 
piness, all these being left to the care and protection of the 
States, except only in the four cases of habeas corpus, bills of 
attainder, ex post facto laws, and laws impairing the obliga- 
tion of contracts. Of all the civil rights of men, and all the 
rights of person and property, only these above named, and 
no more, are entitled to Federal protection in favor of a citi- 
zen against his State ; and this protection extends only to the 
prevention of State action in violation of them, as will be 
shown more fully hereafter. And not one of these rights is 
secured against State action, even in favor of citizens of an- 
other State, except to this extent: That citizens of other 
States should have from each State the like protection that it 
affords to its own citizens. 



THE FIRST EIGHT AMENDMENTS 

What we have said covers in general terms a description 
of the powers delegated to the United States and of those 
which were reserved by the States, as they existed under the 
Constitution when it was framed. It will be noted that whilst 
the Constitution contained an express grant and a specific 
enumeration of the powers vested in the Government of the 
United States, and that it was understood on all sides that no 
others could be exercised, except only such auxiliary powers as 
are necessary and proper to carry the enumerated powers into 
execution, yet it was, out of abundant caution, deemed neces- 
sary to insert in the Constitution certain prohibitions on the 
Federal Government. These prohibitions were deemed neces- 
sary lest Congress should claim these prohibited powers as 
necessary and proper in carrying out the delegated and enu- 
merated powers. 

It will be seen that not one of the powers prohibited is of 
the nature of a substantive and independent power, to be ex- 
ercised solely to attain some end outside of the enumerated 
powers, — some end which in itself and by itself was an object 
to be desired. But our forefathers had been familiar with 
bills or petitions of right in which certain great and funda- 
mental rights were excepted out of the powers of government. 
It was complained that no such bill of rights was a part of the 



The Minority Report 297 

Federal Constitution. So in the very first Congress assembled 
under the Constitution, composed largely of the great states- 
men who had been members of the convention which framed 
the Constitution, and of members of the several State conven- 
tions which ratified it, certain amendments were proposed. All 
of them which were ratified, as has been firmly settled, have 
reference solely to limitations and restrictions on the powers of 
the United States, the design and intent of all of them being 
to prevent Congress in the exercise of its implied powers from 
passing any law of the kind prohibited in the amendments. 

This view is fully sustained by Mr. Madison's great speech 
in the House of Representatives advocating these amendments. 
(See Annals of First Congress, p. 432.) All the propositions 
of amendment looking to a restriction on the power of the 
States, including one offered by Mr. Madison securing against 
State action religious liberty and freedom of the press and 
trial by jury, were rejected, thereby again affirming that all 
the great natural rights of man were to be left solely to the 
States for their definition and their security and protection. 

RIGHTS SECURED AGAINST FEDERAL ACTION BY THESE AMEND- 
MENTS 

It will tend greatly to assist in understanding clearly and 
fully the nature of our system, and to mark the line clearly 
between State powers and duties on one hand, and Federal 
powers and duties on the other, if we note here in general 
terms the great and essential rights which were secured against 
Federal invasion by these amendments, and yet were left 
wholly at the mercy, the will, and discretion of each of the 
several States, fixing as they do, beyond controversy or dis- 
pute, the great underlying and fundamental principles of our 
system, that all civil rights, all rights of person and property, 
are left solely to the States. 

These amendments, whilst leaving to the States unre- 
stricted power, prohibited to the United States any power over, 
and guaranteed the following against Federal action : 

Freedom in religious belief and worship; freedom of 
speech and of the press ; the right of petition ; the right to bear 
arms; security against the quartering of soldiers in the peo- 
ple's houses; security against unwarrantable searches and 



298 The Political History of Slavery in the United States 

seizures, against general warrant; security against trial for 
capital or infamous crimes unless on accusation by a grand 
jury; security against being put twice in jeopardy for the 
same offense ; security against being compelled to be a witness 
against oneself; security against being deprived of life, lib- 
erty, and property without due process of law ; security against 
the taking of private property for public use without just com- 
pensation; the right of trial by jury in civil and criminal 
cases; the right of the accused in criminal trials to be con- 
fronted with the witnesses against him, to have compulsory 
process for witnesses in his favor, and the assistance of coun- 
sel in his defense ; security against the requirement of excessive 
bail, and the imposition of excessive fines, and the infliction of 
cruel and unusual punishment. 

THESE GREAT RIGHTS ARE NOT PROTECTED AGAINST STATE 

ACTION 

All these great rights are secured by the Constitution of 
the United States against Federal aggression only. So far 
as that Constitution and the powers of the Government estab- 
lished by it are concerned, these great rights are left for recog- 
nition, protection, and security to the States, which have sole 
and exclusive jurisdiction over them. They were then, and 
are now, in fact, protected against the action of the State 
governments and State agencies in all the States ; but this pro- 
tection and security came from provisions in the constitutions 
of each State, which the people of that State had of their own 
will ordained and established, and which that same people 
could alter and change at their pleasure, and thereby destroy 
the protection. 

SURVEY OF THE WHOLE SCHEME 

And now, if we will take a survey of the whole, we see 
that this grand scheme of free government for the security of 
the rights and promotion of the welfare and safety and ad- 
vancement of the happiness of the people of the United States 
is, in short, this : 

First. A common Government of all the States with ex- 
clusive jurisdiction and powers as regards foreign nations and 



The Minority Report 299 

all intercourse with them; with jurisdiction over the relations 
between the States as States, and over commerce among the 
States and between them and foreign nations; over certain 
very limited powers whose influence and force ordinarily ex- 
tend beyond State lines and could more conveniently be exer- 
cised by the common Government ; over the securing to the 
citizens of each State, when in the jurisdiction of another 
State, the same great fundamental rights which the latter 
State grants to its own citizens ; a denial to the States of cer- 
tain despotic and arbitrary powers in respect to personal and 
private rights, which are incompatible with free institutions, 
and the denial to the common Government, in the exercise of 
its granted powers, the authority to invade certain great rights 
of private persons, as we have enumerated them; that all the 
powers of the common Government were "delegated" and 
enumerated and all other governmental powers, not prohibited, 
were "reserved" to or kept back by the States ; that the States, 
— as they then existed, possessing all the power then reserved 
to them, — were essentially the basis of the Federal system, 
without which it could not have the beginning of life, nor any 
subsequent existence; that these States were equal in power 
and dignity, and this equality is the essence of the whole 
scheme; that each was adjudged to be capable of discharging 
its Federal functions and of exercising without control or 
restraint from any quarter its reserved powers. 

Second. That in this great mass of reserved powers in 
the States were embraced not only the protection and security 
of all the rights of life, liberty, and property and the pursuit 
and acquisition of happiness but also the unrestricted power 
to define and determine what these rights are, their extent 
and limit, and all the processes of law for their vindication. 
And in this mass of reserved powers are also all jurisdiction 
over the conduct of men, the conservation of morals, and the 
preservation of the public health. That as to all these the 
reserved power of each State was and is absolute, without 
other restriction than it shall itself see proper to impose on 
its own government, so far as its own citizens are concerned, 
and the same rule prevails as far as concerned citizens of other 
States within its jurisdiction, except only that by the Federal 
Constitution it is so bound that the measure it metes to its own 
citizens the same shall be meted to them. 



300 The Political History of Slavery in the United States 

This outline of the matters embraced in the reserved pow- 
ers of the States would ordinarily be sufficient; but in this day, 
when there exists so great a tendency to belittle and to obscure 
the powers, duties, dignity, and importance of the States, and 
to look to the Federal Government to rectify all wrongs, to 
remedy all evils, to supply prosperity and to check adversity, 
to bestow wealth and to remove poverty, and to these ends to 
invoke its powers over interstate commerce and its powers of 
internal and external taxation, in order to build up one inter- 
est at the expense of another, to break down one rival interest 
for the benefit of another, to take charge of sanitation and 
inspection in the States, to control all that pertains to the good 
order and morals of the people, to grant subsidies and bounties 
from the common treasury or the common property to advance 
private interests, it may be well to specify in detail some of 
these great powers of government which, under our constitu- 
tional system, are reserved exclusively to the States. This we 
will do at the risk of repeating in detail what has been stated 
in more general terms. 

SOME OF THE GREAT POWERS RESERVED TO THE STATES 

In this grand jurisdiction thus reserved to or kept by the 
States is the entire power over all contracts; who may make 
contracts, and who are incapable of making them from want 
of mature age, or of mental capacity, or of freedom of will; 
the form in which they must be made ; the evidence to establish 
or defeat them; their nature and obligations; the consequences 
of default in complying with them, and the sole remedies to 
enforce them amongst citizens of the same State. The sole 
power over marriage; who can contract it; the forms to be 
observed in celebrating it; the relative rights, powers, and 
duties of husband and wife toward each other and in the com- 
munity; the causes and manner of its dissolution, and all the 
relations and mutual duties and powers and rights of parent 
and child; and superadded is the institution of the family (the 
unit and basis of our civilization) with the right to acquire 
and hold against adverse fortune the homestead for its shelter 
and conservation. The titles and tenures to all property of 
every kind ; the modes and forms of its acquisition and trans- 
fer ; how the right to it may be lost by neglect or acquiescence 



The Minority Report 301 

in wrong; what are injuries to it and the nature and extent of 
redress for such injury; by what rule it shall be enjoyed in 
life, and on the death of the owner how it shall descend and 
be distributed, and on what failure of blood it shall escheat 
to the State; the right to dispose of it by will, and by whom 
and in what forms wills must be made; whether entails or 
primogeniture shall be allowed, and to what extent property 
may be held in mortmain by corporations, and what rights, if 
any, corporations created in other States or in foreign nations 
shall enjoy in its jurisdiction; the civil status of all its people 
as to legitimacy or the contrary as affected by their birth, their 
education in youth, their civil rights, their qualification to 
vote and hold office, and their conduct in life, and their pro- 
tection and security in life, liberty, property, and reputation; 
crimes against property, larceny, robbery, burglary, arson, 
malicious injuries and trespasses, cheats, embezzlements, for- 
geries, and the like; crimes against the person, assaults, bat- 
teries, mayhems, murder, seductions, false imprisonment, and 
all others; offenses against reputation and character, slander 
and libel; offenses against good order, good morals, and the 
health of the community; the great right of the free exercise 
of religious worship and freedom of religious belief and free- 
dom of speech and of the press; all these and more of like 
character are solely within the jurisdiction and power of the 
States and depend on their laws and government for preser- 
vation and protection. In short, the State authority meets the 
child at his birth, attends him through infancy, manhood, and 
old age, and at his death, and is sufficient, if wisely exerted, 
to secure to him all the blessings which make life desirable in 
this world, and the opportunity of gaining for himself, in his 
free exercise of his religious belief, a blissful hereafter. 

THE SUPREME COURT AFFIRMS THIS PRINCIPLE 

The Supreme Court, in the Slaughter-House Cases (16 
Wall. R., 76) referring to and quoting from the great judg- 
ment of Judge Washington in Corfield v. Coryell (4 Wash. 
C. C. R., 371), and speaking of the great and fundamental 
rights which are left by the Constitution under the sole guar- 
dianship and protection of the States, said they are compre- 
hended under the following general heads : 



302 The Political History of Slavery in the United States 

"Protection by the Government, with the right to acquire 
and possess property of every kind, and pursue happiness and 
safety, subject, nevertheless, to such restraints as the Govern- 
ment shall prescribe for the general good of the whole." 

And the same court, in the same case, referring to Ward v. 
Maryland (12 Wall., 430), say: 

"This definition [above quoted from Judge Washington] 
was in the main adopted there, and it embraces nearly every 
civil right for the establishment and protection of which or- 
ganised government is instituted. They are, in the language 
of Judge Washington, those rights which are fundamental, 
and they have always been held to be the class of rights which 
the State governments were created to establish and secure." 

In the same case the court, treating of these same rights 
and exhibiting some impatience that a contrary opinion should 
be expressed, said : 

"It would be the vainest show of learning to attempt to 
prove by citation of authority that up to the adoption of the 
recent amendments (Thirteenth, Fourteenth, and Fifteenth), 
no claim was set up that those rights depended on the Federal 
Government for their existence or protection beyond the very 
few express limitations which the Federal Constitution im- 
posed on the States, such for instance as the prohibition against 
ex post facto laws, bills of attainder, and laws impairing the 
obligation of contracts. But with the exception of these and 
a few other restrictions, the entire domain of privileges of 
citizens of the States, as above defined, lay within the consti- 
tutional and legislative powers of the States and without that 
of the Federal Government." 

This is authority enough for this great and fundamental 
principle of the Constitution, which indeed is so patent and 
clear that the Supreme Court said it needed no authority for 
its support. 

But this bill, sanctioned and recommended by the majority 
of the Committee on the Judiciary, attacks it, — denies it. We 
will, right here, add another authority, and hereafter many 
more to support the Constitution against the assaults made on 
it by the provisions of the bill we are now considering. The 
authority we now refer to is the judgment of the Supreme 
Court in United States v. Cruikshank (92 U. S. Rep., p. 554). 
That great tribunal, in denying the validity of the statute of 



The Minority Report 3°3 

the United States providing for the punishment of a con- 
spiracy to murder and imprison within a State, through Chief 
Justice Waite said : 

"The rights of life and personal liberty are natural rights 
of man. To secure these rights, says the Declaration of In- 
dependence, 'Governments were established among men, de- 
riving their just powers from the consent of the governed.' 
The very highest duty of the States, when they entered into 
the Union under the Constitution, was to protect all persons 
in their jurisdiction in the enjoyment of these 'inalienable 
rights with which they are endowed by their Creator.' Sov- 
ereignty for this purpose rests alone with the States." 

It must be noted that both of these cases were decided after 
the adoption of the three recent amendments to the Constitu- 
tion, and the last quotation was a judgment on the meaning of 
the Constitution as amended by them. But we will pursue 
that point no further now, our object being, in the regular and 
orderly discussion of this subject, to ascertain the meaning, 
force, and effect of the Constitution prior to the amendments, 
and then to note what changes they made in it. 

DUTY COMES FROM POWER 

We have seen what are the powers of the two Govern- 
ments, State and Federal; it is easy now to see their duties. 
Power to protect and duty to protect are inseparable, the latter 
following and deriving its source from the former. For power 
we must look to the Constitution ; when it is found, the duty 
is also found; but the duty never extends beyond the power. 
Said Chief Justice Waite, in the last case cited : "The duty 
of a government to afford protection is limited always by the 
power it possesses for that purpose." 

THAT DUTY COMES FROM POWER REVERSED 

So far our way is plain. There are no doubts, no chances 
for mistake. The line separating the powers and duties of 
the Federal Government from the powers and duties of the 
State governments is plainly marked, and it is plain that the 
power to pass this bill does not lie on the side of the Federal 
Government. 



304 The Political History of Slavery in the United States 

But in the course of time the great and essential rule for 
the interpretation of the powers of a government to which we 
have just adverted, and which received the sanction of the 
Supreme Court in the language we have just quoted, that the 
duties of a government were limited by its powers, was in 
some sections of our country being reversed and the powers 
of our common Government were derived not from the Consti- 
tution and its delegations of power; but men, looking at 
wrongs and evils, or supposed wrongs and evils, exclusively 
from the standpoint of their moral nature, their own concep- 
tion of right and wrong, derived the power to act from what 
they thus concluded it was their moral duty to do. And in 
this way, and founded on these principles, there arose a party 
in this country, composed of men whose moral nature rebelled 
against all human wrong, and incited them to aggressive war- 
fare for its removal, and who, in their zeal, were guided alone 
by their conviction that wrong, sin, "the sum of all villainies," 
was tolerated and protected in certain States of the Union in 
which African slavery existed. They did not stop to inquire 
whether the Federal Government had the power to interfere. 
They did not consult the Constitution for Federal power, and, 
rinding it, then deduce the duty to interpose. To them the 
wrong was patent, their duty clear, and as a consequence the 
power existed. 

THE CONSTITUTION BINDING IN ALL ITS PARTS 

We shall not pursue the slavery agitation further. Suffice 
it to say that war came. It matters not for the purposes of 
this argument which side was right. The war ended, and as 
a consequence of it came the three amendments to the Consti- 
tution, — Thirteenth, Fourteenth, and Fifteenth. How they 
were placed there is wholly immaterial. They are there now as 
a part of the supreme law of the land. They are binding on all 
of us. Whether they were wisely or justly placed in the Con- 
stitution we shall not stop to inquire. Our inquiry is as to 
their meaning and force, and not into the methods of adoption. 
What we shall say in opposition to this bill we shall claim 
under the Constitution as thus amended ; and in pleading as we 
now do for faith in compacts between the people of the States, 
for obedience to the Constitution in all its parts, and in its 



The Minority Report 3°5 

every syllable and letter, in the original and in the amend- 
ments, we do not propose to disparage it in any respect what- 
ever. 

It is to us no "covenant with death," no "agreement with 
hell," but the supreme law of the land, and as such we obey it 
in all its parts. We know of no "higher law" for American 
Senators, or for American citizens, than the Constitution. We 
know of no duties of the Federal Government beyond the pow- 
ers it confers, and we recognize as binding on us, in letter and 
spirit, every duty imposed by it on the Congress of the United 
States. 

THE FORCE OF THE THIRTEENTH, FOURTEENTH, AND FIF- 
TEENTH AMENDMENTS 

We have now seen what was the nature of our system of 
government, and what were the relative powers and duties of 
the Federal and State governments under the Constitution, as 
it existed before the three amendments were adopted ; and we 
have seen that under it, as it then existed, there was no power 
to pass this bill. We inquire now whether the needed power 
has been conferred by these amendments. The task will be 
easy, since from this point our way is marked out clearly by 
judicial decision. We shall do little more than refer to, quote 
from, and apply these decisions. 

THE SLAUGHTER-HOUSE CASES 

Happily for the country, the first case in which the con- 
struction and meaning of these amendments came before the 
Supreme Court was one in which Southern white men were 
seeking redress against one of those pernicious statutes, then 
common in the Southern States, by which those possessed of 
the State governments were making traffic and merchandise 
of their powers for the purpose of enriching themselves and 
their friends, namely, the Slaughter-House Cases (in 16 Wall. 
R.). There was nothing in these cases to excite alarm or preju- 
dice, so far as the colored race was concerned, and nothing to 
prevent a calm and careful consideration of the amendments. 
It is remarkable, too, that a Southern States' rights jurist of 
unequaled powers and great purity of character appeared be- 
fore the court, pressing for a construction of the amendments, 



306 The Political History of Slavery in the United States 

which, if adopted, would have been the fatal precedent upon 
which could have been built, and would have been built, a sys- 
tem of legislation which would have left, in the Southern 
States at least, no other control over their internal affairs 
than it should please Congress to give them. It is remarkable, 
too, that this construction was concurred in by the two Demo- 
crats who then held seats on the Supreme bench, and that the 
narrower, yet the plainly true, construction of the Constitution 
was upheld by Republican judges only, and vindicated in an 
opinion of unsurpassed ability. 

In this opinion the great judge who drew it up, referring 
to the tendency created by the war in favor of more enlarged 
powers of the Federal Government, thought it necessary to 
say: 

"But however pervading this sentiment, and however it 
may have contributed to the adoption of the amendments, we 
do not see in those amendments any purpose to destroy the 
main features of the general system. Under the pressure of 
all the excited feeling growing out of the war, our statesmen 
have still believed that the existence of States, with powers 
for domestic and local government, including the regulation 
of civil rights, the rights of person and property, was essential 
to the perfect working of our complex form of government, 
though they have thought proper to impose additional limita- 
tions upon the States, and to confer additional powers on that 
of the nation." 

The Fourteenth Amendment provides, among other things, 
that "no State shall make or enforce any law which shall 
abridge the privileges and immunities of the citizens of the 
United States." And the main effort in that case by the ap- 
pellants was to bring within the scope of the Federal Govern- 
ment jurisdiction to protect citizens against the exercise by a 
State legislature of a power to grant to a corporation an unjust 
and odious monopoly of the business of slaughtering live stock 
for food, and of receiving at their landing all live stock 
shipped to the parishes in which the city of New Orleans is 
situated, — a territory embracing 1,154 square miles. It was 
urged in their behalf that this law deprived over 1,000 persons 
of the right to follow their vocation as butchers, — a right 
which they had as citizens of the United States. 

The court, however, denied this claim, holding that there 



The Minority Report 307 

were two citizenships in our system, — one of the United States, 
and one of the State in which a citizen of the United States 
resides ; that these two citizenships pertain to all citizens of the 
United States, who were also residents of any State ; that the 
rights, privileges, and immunities of such a person as a citizen 
of the United States were separate and distinct from his rights, 
privileges, and immunities as a citizen of a State ; that protec- 
tion of the former alone was committed to the Federal Gov- 
ernment, and of the latter to the State Government ; that each 
citizen of a State owed a double allegiance, namely, to the 
Federal Government, and to the State in which he resided; 
that he looked to the one for the security and protection of a 
part of these rights, and to the other for protection in all the 
others ; that both governments were parts of a complete whole, 
and both necessary to the protection and security of the citizen 
in all his rights, privileges, and immunities. 

The court then proceeds to enumerate the rights which per- 
tain to a citizen in his character of citizen of the United States, 
and which we will here reproduce, so that by considering the 
actual examples a clearer insight may be had into their nature 
than could come from definition and description only. 



RIGHTS OF CITIZENS OF THE UNITED STATES ENUMERATED 

They are as follows : 

The right to come to the seat of Government to assert any 
claim he may have upon that Government, to transact any busi- 
ness he may have with it, to seek its protection, to share its 
offices, to engage in administering its functions. 

The right of free access to its seaports, through which all 
operations of foreign commerce are conducted; to the sub- 
treasuries, land offices, and courts of justice in the several 
States. 

The right to demand the care and protection of the Federal 
Government over his life, liberty, and property when on the 
high seas or within the jurisdiction of a foreign Govern- 
ment. 

The right to peaceably assemble and petition (Congress) 
for a redress of grievances, and to the writ of habeas corpus. 

The right to use the navigable waters of the United States 
however they may penetrate the territory of the several States. 



308 The Political History of Slavery in the United States 

All rights secured to citizens by treaties with foreign na- 
tions. 

The right to become a citizen of a State by residing in it. 

Then proceeds the court: 

"There are rights which pertain to a citizen in his character 
of citizen of the United States, and are therefore subject to 
Federal jurisdiction and power, which grow out of prohibi- 
tions in the Constitution of the United States on State action; 
of such is the right to be absolved from all the consequences 
of bills of attainder, ex post facto laws, and laws impairing 
the obligation of contracts enacted by the States; and the right 
secured against prohibited State actions, as expressed in the 
three new amendments to the Constitution." 

The court, on these principles, refused to give relief against 
the legislation of the State of Louisiana complained of. 

EFFECT OF THE GREAT JUDGMENT IN THE SLAUGHTER-HOUSE 

CASES 

This great judgment was the first beacon light that flashed 
across the gloom and darkness of constitutional exposition 
produced by the events of the war. It recalled the great prin- 
ciples on which the Constitution was based, and pointed out 
the path of safety to be pursued. It is so clear in its argu- 
ment, so convincing in its reasoning, that men wonder on 
reading it how they ever entertained any doubt about the true 
meaning of the Constitution as affected by the amendments. 

POWER CONFERRED BY THE AMENDMENTS RELATES ONLY TO 

STATE ACTION 

This case was followed by others, in which the principles 
announced in the Slaughter-House Cases were followed to 
their logical conclusion in strict accord with the terms of these 
amendments. So far as the present argument is concerned it 
is only necessary to say that the power conferred on the Fed- 
eral Government by these amendments was held to be the only 
power to enforce the prohibitions on State actions contained 
in them. 

These amendments, so far as they relate to the questions 
now involved, consisted wholly of negations, — prohibitions 
always on State action and sometimes on Federal action. 



The Minority Report 309 

The language of the Fourteenth Amendment is as fol- 
lows: 

"No State shall make or enforce any law which shall 
abridge the privilege and immunities of citizens of the United 
States, nor shall any State deprive any person of life, liberty, 
or property without due process of law, nor deny to any per- 
son within its jurisdiction the equal protection of the laws." 

And the Fifteenth Amendment ordains as follows : 

"The right of the citizens of the United States to vote shall 
not be denied or abridged by the United States, or by any 
State on account of race, color, or previous condition of servi- 
tude." 

It is now firmly settled that these provisions are directed 
solely against State laws and State action, through persons or 
agents clothed with State authority. It is also settled that the 
power conferred on Congress to enforce these provisions is a 
power only to enforce the prohibition against State action. 
That the rights conferred on persons under them are not posi- 
tive, original rights, but the right only to exemption from, 
and protection against, the prohibited State action. And the 
power of Congress to interfere in any case is purely a power 
of correction, a power to give redress against a prohibited 
State action, that the exercise, the actual exercise of efficient 
power by Congress, under the amendments, presupposes State 
action of the kind prohibited; and until there be such pro- 
hibited State action, the power of Congress is wholly dormant, 
and without such action really being taken, somewhere or at 
some time, the power of Congress would sleep forever. 

In no case under these amendments, so far as the present 
controversy is concerned, can the power of Congress be made 
to reach, for punishment or for correction, or for redress in 
any way, civil or criminal, the acts of private individuals. On 
this last point the controversy was long between a sectional 
majority in Congress and the Constitution, but in the end the 
Constitution triumphed fully, completely. It would be inter- 
esting to trace the progress of the decisions of the court from 
the first to the last case in evolving, as the facts of each case 
warranted, the true meaning of these amendments. To do 
this would detain us too long. But it is well here to quote 
some of the expressions of the judgments in these cases, show- 
ing truths of a fundamental character. 



310 The Political History of Slavery in the United States 
QUOTATIONS FROM THE SUPREME COURT 

United States v. Cruikshank 

Chief Justice Waite, in delivering the opinion of the Su- 
preme Court in United States v. Cruikshank (92 U. S., p. 
555), speaking of the provisions in the Fourteenth Amendment 
prohibiting the States from denying to any persons within 
their jurisdiction "the equal protection of the laws," said : 

'This provision does not, any more than the one which 
precedes it, and which we have just considered (namely, the 
provision prohibiting a State from depriving any person of 
life, liberty, or property, without due process of law), add 
anything to the rights which one citizen has under the Con- 
stitution against another. The equality of the rights of citi- 
zens is a principle of republicanism; every republican Govern- 
ment is in duty bound to protect its citizens in the enjoyment 
of this principle, if within its power. That duty was originally 
assumed by the States, and it still remains there. The only 
obligation resting upon the United States is to see that the 
States do not deny the right. The amendment (the Four- 
teenth) guarantees this, but no more. The power of the Na- 
tional Government is limited to the enforcement of the guar- 
antee." 

And on this ground the Supreme Court in that case held 
that the United States had no power to punish a conspiracy to 
commit murder, or to falsely imprison a citizen, and none to 
punish false imprisonment or murder itself. This case was 
decided in 1875, an d was the logical outcome of the principles 
announced in the Slaughter-House Cases, decided in 1872, 
and Bartemeyer v. Iowa, 18 Wallace, 130; Miner v. Happer- 
sett, 21 Wallace, 162; United States v. Reese, 92 U. S., also 
decided in 1875. 

In the same line was the decision in Strauder v. West Vir- 
ginia, decided in 1879. 

Virginia v. Rives 

At the same term was decided Virginia v. Rives (100 U. 
S. R., 313), in which the Supreme Court remanded to the 
State court a criminal case which had been removed to the 
Federal court upon the ground that the subordinate State offi- 



The Minority Report 311 

cers, in violation of the law of the State, had discriminated 
against the accused, who was a colored man, in declining to 
summon on the grand jury which indicted, and on the panel 
which was to try him, any person of his race. Justice Strong, 
speaking for the court, and quoting all the provisions of the 
first section of the Fourteenth Amendment (except the first 
clause, which defined citizenship), said: 

"They all have reference to State action exclusively, and 
not to any action of private individuals. It is the State which 
is prohibited from denying to any person under its jurisdic- 
tion the equal protection of the laws, and hence the statute 
above referred to (sections 1777 and 1778 of the Revised Stat- 
utes) is intended for protection against State infringement 
of those rights." 

Ex Parte Virginia and Neal v. Delaware 

At the same term of the court was decided the case of Ex 
parte Virginia (100 U. S.). In this case the Supreme Court 
affirmed the constitutionality of an act of Congress punishing 
a subordinate State officer, acting as such, and exercising a 
State power, conferred on him by State laws, for denying to 
a colored man the equal protection of the laws, but the court 
reaffirmed, in the most explicit language, the doctrine that the 
first section of the Fourteenth Amendment referred alone to 
State action. On this point the court repeated : 

"The prohibitions of the Fourteenth Amendment are di- 
rected to the States, and they are to a degree restrictions on 
State power. It is these (restrictions on State power) which 
Congress is authorized to enforce, and to enforce against 
State action." 

The court further held that this power of Congress to 
enforce the prohibitions and restrictions on State action ex- 
tended to all kinds of State action, "however put forth, 
whether that action be executive, legislative, or judicial," and 
therefore it was in the power of Congress to punish State 
ministerial officers who, clothed with State power, exercise 
that power in violation of these prohibitions on State action. 
On this point the court used this language : 

"Whoever, by virtue of public position under a State gov- 
ernment, deprives another of life, liberty, or property, with- 



312 The Political History of Slavery in the United States 

out due process of law, or denies or takes away the equal pro- 
tection of the laws, violates the constitutional inhibitions, and, 
as he acts in the name of and for the State, and is clothed with 
the State's power, his act is that of the State." 

Neal v. Delaware, 103 U. S., 370, decided in 1880, follows 
in the same line. 

Up to this point it seems clear enough, in fact, beyond con- 
troversy, that the power conferred on Congress by the amend- 
ments did not extend to dealing with private persons for their 
individual acts, in contravention of the rights which followed 
from the prohibitions in the amendments. But so tenacious 
is usurped power of its unjust and unconstitutional preroga- 
tives ; so strong the sentiment that power comes from supposed 
or assumed moral duties, and not duties from power granted 
by the Constitution ; so long had the Southern States suffered, 
without successful resistance, from unconstitutional domi- 
nance in their domestic and internal affairs, reserved to them 
by the Constitution; that the devilish spirit of intermeddling 
would not down at these repeated decisions of the Supreme 
Court. This spirit takes possession of e\en men of good in- 
tentions, if they have associated with it an intense egoism and 
strong convictions of their own superior personal purity and 
wisdom, and a distrust of the virtue and capacity of others, 
and it arrogates to itself the guardianship and control of the 
world. So it became necessary for the Supreme Court to 
make another decision, reaffirming again and enforcing the 
true principles of the Constitution, as they had been announced 
in their former judgments. 

United States v. Harris 

In 1882 the case of United States v. Harris, 106 U. S., p. 
629, was decided. That case was an indictment under section 
5519, Revised Statutes, which was in the following words: 

"If two or more in any State or Territory conspire, and 
go in disguise upon the highways or on the premises of an- 
other, for the purpose of depriving, either directly or indi- 
rectly, any person or class of persons of the equal protection 
of the laws or of equal privileges and immunities under the 
laws, or for the purpose of preventing or hindering the con- 
stituted authorities of any State or Territory from giving to 



The Minority Report 313 

all persons within such State or Territory the equal protection 
of the laws, each of said persons shall be punished by a fine, 
and so forth." 

The indictment charged certain private citizens of Ten- 
nessee with taking certain other citizens of the State from the 
custody of the sheriff who held them for trial on a criminal 
charge, and with beating, wounding, and maltreating them, and 
killing one of them, and thereby depriving them of an equal 
protection of the laws of the State. The Supreme Court, as if 
wearied by the compulsory reiteration of principles already 
well settled, delivered a very elaborate and learned opinion, 
drawn up by Justice Woods, and again confirmed the true con- 
struction of the Constitution already fixed by the preceding 
cases. The court deemed it necessary again to enforce the 
old maxim of constitutional construction, by quoting from 
Judge Story that which, up to the war, had never been doubted 
as a fundamental canon of constitutional law, thus : 

"Whenever, therefore, a question concerning the consti- 
tutionality of a particular power arises, the first question is, 
whether the power be expressed in the Constitution? If it 
be, the question is decided. If it be not expressed, the next 
inquiry would be whether it be properly incident to an express 
power and necessary to its execution, &c. ( Story on the Con- 
stitution, sec. 1243.)" 

The court then, proceeding on this canon of construction, 
quote and discuss all the various provisions of the Constitution 
on which this legislation (section 5510) and the indictment 
founded on it could possibly have been based, namely, the 
Thirteenth, Fourteenth, and Fifteenth amendments, and Sec- 
tion 2, Article 4, which we have before noticed as guaranteeing 
to the citizens of the several States the privileges of citizens in 
each State, and find that none of them is a warrant for this 
legislation. Referring to the first section of the Fourteenth 
Amendment (hereinbefore noted as containing the prohibitions 
to the States), and to the fifth (giving power to Congress to 
enforce them), the learned judge quotes from the Slaughter- 
House Cases as follows : 

"If the States do not conform their laws to its requirements 
(of the Fourteenth Amendment), then, by the fifth section of 
the article of amendment, Congress is authorized to enforce it 
by suitable legislation." 



314 The Political History of Slavery in the United States 

And he quotes and adopts the following expressive lan- 
guage of Mr. Justice Bradley in the Cruikshank Case when it 
was tried in the circuit court (i Woods, 308) : 

"It (the Fourteenth Amendment) is a guarantee against 
the acts of the State government itself. It is a guarantee against 
the exercise of arbitrary and unconstitutional power on the 
part of the government and legislation of the State, not a guar- 
antee against the commission of individual offenses; and the 
power of Congress, whether express or implied, to legislate 
for the enforcement of such a guarantee, does not extend to 
the passage of laws for the suppression of crime within the 
States. The enforcement of the guarantee does not require or 
authorize Congress to perform the duty that the guarantee 
itself supposes it to be the duty of the State to perform." 

And, quoting from the same case when in the Supreme 
Court, he again announced the doctrine that "the obligation 
resting upon the United States is to see that the States do 
not deny the right. This the amendment guarantees, and no 
more. The power of the National Government is limited to 
this guarantee." And he also repeated what was said in Vir- 
ginia v. Rives, "that these provisions of the Fourteenth 
Amendment had reference to State action exclusively." 

And having shown that the Fourteenth Amendment did not 
warrant the legislation, the court continues, in the following 
unanswerable argument, to show that these amendments and 
the rights secured by them cannot be violated by private per- 
sons, and hence Congressional action under these amendments 
cannot be directed against nor operate upon private persons : 

"A private person cannot make constitutions or laws, nor 
can he with authority construe them, nor can he administer or 
execute them. The only way, therefore, one private person 
can deprive another of the equal protection of the laws is by 
the commission of some offense against the laws which protect 
the rights of persons, as by theft, burglary, arson, libel, as- 
sault, or murder. If, therefore, we hold that section 5519 
(before quoted) is warranted by the Thirteenth Amendment, 
we should, by virtue of that amendment, accord to Congress 
the power to punish every crime by which the right of any 
person to life, liberty, property, or reputation is invaded. Thus, 
under a provision of the Constitution which simply abolished 
slavery and involuntary servitude, we should, with few ex- 



The Minority Report 315 

ceptions, invest Congress with power over the whole catalogue 
of crimes. A construction of the Thirteenth Amendment 
which leads to such a result is therefore unsound." 

THESE DECISIONS SETTLED THE ^MEANING OF THE CONSTITU- 
TION 

This last decision would seem to close the door against all 
controversy as to the meaning of the three amendments and 
the powers of Congress under them. It, in connection with 
the preceding decisions of the Supreme Court, did settle, if 
anything can be settled in American Constitutional law, that 
the power and consequent duty of protecting life, liberty, and 
property, all personal and property rights, the power to punish 
all invasions of them, all offenses against persons and prop- 
erty, remained exclusively with the States ; that so far as 
power was conferred by the Constitution on the United States 
to interpose in these matters it was solely a power to prevent 
or correct State action of the kind prohibited, namely, State 
action depriving a person of life, liberty, or property without 
due process of law; that is, without due process of State law, 
not of Federal law, but of State law ; and denying to any per- 
son the equal protection of the laws, of the State laws, for 
there were no other laws which could protect them; and that 
so far as Congress had the right under the clauses conferring 
jurisdiction to enforce the amendments, to pass laws to operate 
directly or indirectly, it was a power to restrain and correct 
State action, performed by State officers and agents clothed 
with State authority, and to punish such officers and agents 
for their official and public action done in the name and by the 
authority of the State, and did not reach the acts and conduct 
of private individuals. 

THE CIVIL RIGHTS LAW AND ITS PROMOTERS 

But the spirit of aggression on State authority, where that 
aggression would operate efficiently and offensively on the 
Southern States, the temper to intermeddle with the concerns 
of others, and to badger and insult them not only in that which 
related to their public conduct but also in their private and 
social relations, would not acquiesce in the defeat thus re- 



316 The Political History of Slavery in the United States 

ceived at the hands of that august tribunal. In the year 1875 
a law was enacted to enforce in public places, theaters, inns, 
and railroad cars, and on steamboats, a social equality between 
the two races. 

The law was not obeyed anywhere. The colored people of 
the South in the main did not approve it; they were not in- 
clined to force an association for which neither race felt any 
desire ; they were content to leave to time, to the regular work- 
ing of social forces, the regulation of social intercourse and 
social duties. Yet here and there all over the country were 
found those of that race, — few indeed, — mostly of mixed 
blood, who took advantage of the provisions of the statute. 
From this it resulted that, in some instances, criminal prose- 
cutions were commenced under the statute, and civil suits for 
damages instituted for a violation of its provisions. 

THE CIVIL RIGHTS CASES 

Both classes of these came before the Supreme Court in 
December, 1883, and are reported under the name of "Civil 
Rights Cases," in 109 U. S. R., p. 3. The statute under which 
these cases arose was passed March 1, 1875, sec. 18 Stat., p. 
335, and is as follows: 

"Section i. That all persons within the jurisdiction of 
the United States shall be entitled to the full and equal enjoy- 
ment of the accommodations and advantages, facilities and 
privileges of inns, public conveyances on land or water, the- 
aters, and other places of public amusement, subject only to 
the conditions and limitations established by law and applicable 
alike to citizens of every race and color, regardless of any 
previous condition of servitude." 

Section 2 provided penalties and punishments for any per- 
son violating the first section. 

The statute was adjudged unconstitutional ; this result was 
reached by an opinion drawn up by Mr. Justice Bradley, dis- 
tinguished for the clearest analysis, the most unanswerable 
reasoning. 

Time will not allow us to set out the substance of the argu- 
ment of this great judgment; we can only quote from it a few 
short extracts, which are most directly pertinent to the ques- 
tion before us. The court quoted from and confirmed the 



The Minority Report 317 

cases which had been decided, holding that the Fourteenth 
Amendment applied to State action alone ; explained the Four- 
teenth and Fifteenth Amendments; and, in reference to the 
jurisdiction of Congress to exercise direct and positive power, 
in contradistinction to power merely corrective of prohibited 
State action, among other things said : 

"It is State action of a peculiar character that is prohib- 
ited ; individual invasion of individual rights is not the subject- 
matter of the amendment. It has a deeper and broader scope. 
It nullifies and makes void all State legislation and State ac- 
tion of every kind which impairs the privileges and immuni- 
ties of citizens of the United States, or which deprives them 
of life, liberty, or property without due process of law, or 
which denies to them the equal protection of the laws." 

And speaking of the fifth section, which gives Congress 
the power to enforce this, the court continues : 

"To enforce what? To adopt appropriate legislation for 
correcting the effect of such prohibited State laws and State 
action, and thus to render them effectually void and inopera- 
tive; this is the legislative power conferred on Congress, and 
this is the whole of it. It does not invest Congress with power 
to legislate upon subjects which are within the domain of State 
legislation, but to provide against State legislation and State 
action of the kind referred to. It does not authorize Congress 
to create a code of municipal law for the regulation of private 
rights, but to provide modes of redress against the operation 
of State laws and the action of State officers, executive and 
judicial, when these are subversive of the fundamental rights 
specified in the amendment. Positive rights and privileges are 
undoubtedly secured by the Fourteenth Amendment, but they 
are secured by way of prohibition against State laws and State 
proceedings opposing these rights and privileges, and by power 
given to Congress to legislate for carrying such prohibition 
into effect; and such legislation by Congress must necessarily 
be predicated upon such supposed State laws and State pro- 
ceedings and be directed to the correction of their operation 
and effect." 

This is clear enough, but the court emphasized the decision 
again in this extract : 

"Until some State law has been passed, or some State ac- 
tion, through its officers or agents, been taken adverse to the 



31 8 The Political History of Slavery in the United States 

rights of citizens sought to be protected by the Fourteenth 
Amendment, no legislation of the United States under said 
amendment, nor any proceeding under said amendment, can be 
called into activity; for the prohibitions of the amendment are 
against State laws and acts done under State authority." 

And, again, the court, in denying the power of Congress, 
under these amendments, to legislate on the subject of the 
violation by private persons of rights secured by them, use 
this language : 

"Civil rights, such as are guaranteed by the Constitution 
against State aggression, cannot be impaired by the wrongful 
acts of individuals unsupported by State authority in the shape 
of laws, customs, or judicial or executive proceedings; the 
wrongful acts of an individual unsupported by any State au- 
thority are simply a personal wrong, or a crime of that indi- 
vidual, an invasion of the rights of the injured party, it is 
true, whether they affect his person, his property, or his repu- 
tation; but if not sanctioned in some way by the State, or not 
done under State authority, his rights remain in full force, 
and may presumably be vindicated by a resort to the laws of 
the State for redress. An individual cannot deprive a man 
of his right to vote, to hold property, to buy or sell, to sue in 
the courts, to be a witness or a juror ; he may by force or fraud 
interfere with the right in a particular case; he may commit 
an assault against the person or commit murder, or use ruffian 
violence at the polls, or slander the good name of a fellow- 
citizen; but unless protected in these wrongful acts by some 
shield of State law or State authority, he cannot destroy or 
injure the right; he will only render himself amenable to sat- 
isfaction or punishment, and amenable therefor to the laws of 
the State where the wrongful acts are committed. 

"When the Constitution seeks to protect rights against the 
discriminative and unjust laws of a State by prohibiting such 
laws, it is not individual offenses but abrogation and denial of 
rights which it denounces and for which it clothes Congress 
with power to provide a remedy. The abrogation or denial of 
rights for which the States alone were, or could be responsible, 
was the great seminal and fundamental wrong which was in- 
tended to be remedied; and the remedy to be provided must be 
predicated upon that wrong. It must assume that in the cases 
provided for, the evil of the wrong actually committed rests 



The Minority Report Z l 9 

upon State law or State authority for its exercise or perpetra- 
tion." 

COMMENTS ON THESE CASES 

This closes what we have to say on the subject of judicial 
exposition by the Supreme Court of the powers of Congress, 
so far as they relate to the subject-matter of this bill. These 
cases prove beyond controversy that Congress has no direct 
power or jurisdiction over the main points in the bill. Con- 
gress can pass no law upon the subjects of personal conflicts 
between private individuals of different races and personal 
wrongs perpetrated by one on the other ; or between persons of 
different political parties ; or wrongs done by one party man on 
another because of opinions which the injured party may 
entertain or express. We suppose this much is conceded by 
the authors of the bill, or else they would have provided di- 
rectly for the redress of the wrongs and the punishment of 
the offenders. 

The authors of this bill have not been backward in assert- 
ing power in Congress over subjects cognate to those men- 
tioned in this bill. Independent of any support which they 
may have given to the many acts of Congress which may have 
been decided unconstitutional by the Supreme Court in the 
cases we have referred to (and about which we have made 
no inquiry and therefore make no assertion), they have intro- 
duced bills in this body, contemporaneously with the decisions 
in the "Civil Rights Cases," which contained assertions of the 
extremest power over these subjects. One of these, introduced 
by the learned chairman of the Judiciary Committee (the Sen- 
ator from Vermont) on the 4th of December, 1883, and re- 
ported back from the committee by the Senator from Massa- 
chusetts (Mr. Hoar) on July 20, 1884, indicates no want of 
faith in the unlimited power of Congress to legislate wherever 
colored people are concerned ; yet this bill was never called up 
for action, and now sleeps the sleep of death. Whether it was 
abandoned from a change in the views of its authors as to its 
constitutionality or not, we are unable to say. 

Certainly it was a very extraordinary bill in all its pro- 
visions. Its main object was to withdraw from the considera- 
tion of the State courts all cases in which was litigated any 
right for the settlement of which it was necessary to pass upon 



320 The Political History of Slavery in the United States 

the race or color or previous condition of servitude of any 
person whatever. It further contained the degrading pro- 
vision that authorized a citizen of the State in which the court 
sat to stop a trial in which he was a party, and, of his own 
mere will, to remove it to a Federal court if he should be dis- 
satisfied with a decision of any point made against him. A 
power so degrading to a court was never allowed in a free 
country to a mere suitor. Long years ago in England the writ 
of prohibition issuing from a superior court to an inferior was 
sometimes delivered to the inferior court during the trial, 
though it was always issued before; and by this proceeding a 
trial already commenced was stopped and removed to another 
court. But this was condemned by the English Parliament in 
the reign of Queen Elizabeth, three hundred years ago; it 
was driven in disgrace from practice, and has so remained ever 
since. 

It was left to the bill to which we have already referred to 
make the attempt for the first time to introduce the practice 
here, with the superadded wrong of leaving it to the discretion 
of a party in court to menace and insult the judge by an im- 
mediate removal of the case if he should dare to decide a 
question against him. 

BILL UNCONSTITUTIONAL FOR A MERE INQUEST 

It is no defense to the constitutionality of this bill that it 
assumes no jurisdiction, no power over persons to punish or 
restrain them ; but simply directs the court to make an inquest 
or inquisition concerning crimes committed in a State, and 
whose trial and punishment are solely in that jurisdiction. The 
question for our decision is, have we the power to pass the 
bill; not whether the bill proposes nothing of effective force; 
not whether it be a mere impotent abortion, neither securing 
rights nor preventing wrongs. 

It is no excuse in a constitutional point of view, even if it 
be true, that the bill does not invade effectively the domain of 
the reserved rights of the States, or is wholly innocuous from 
mere impotency and want of vigor. We must look to the 
Constitution for the power. It is certain the power to pass 
this bill is not among the express powers of the Constitution. 
No one pretends that. If it be claimed as an incidental power, 



The Minority Report 321 

then its advocates must point out the express power or powers 
for carrying out which this bill is necessary and proper or ap- 
propriate. This cannot be done. We challenge them to do 
this. Besides, mere impotency, — mere inutility, — condemns it 
as an incidental power, for only implied powers are granted 
by the Constitution, which are useful and effective, or, in con- 
stitutional language, "necessary and proper for carrying into 
execution" the powers expressly granted. So if it be ineffec- 
tive and useless, for that reason alone it is unconstitutional. 
But conceding it to have force, as it has, the inquisition pro- 
posed in it, so far as it relates to injuries by private individu- 
als, to persons and property (and that is the whole of it), is 
an inquisition into the conduct of persons, into crimes and 
offenses exclusively within the jurisdiction of the State. What- 
ever may be the information obtained by it, however calum- 
nious and unjust to private citizens, to whom it gives no oppor- 
tunity of defense, it cannot be made the basis of Federal action 
in the matters which constitute its soul and spirit. 



POWER TO INQUIRE LIMITED BY THE JURISDICTION OVER THE 

SUBJECT 

It was settled at an early day by the action of no less an 
authority than that of George Washington, that the jurisdic- 
tion of the legislative branch of the Government to make 
official inquiry, under the sanction and force of law, was 
limited by its power to act on the subject-matter concerning 
which the inquiry was made. The Senate will remember that 
on March 12 last the Senator from West Virginia, in the 
debate on the relations between the President and this body, 
produced a message from George Washington, in which he 
declined to furnish certain information at the request of the 
House of Representatives upon the express ground that the 
House had no power over the subject to which the information 
related. In that message General Washington stated the 
grounds of his refusal in these words : 

"As, therefore, it is perfectly clear to my [his] understand- 
ing that the assent of the House of Representatives is not 
necessary to the validity of a treaty, and as the treaty with 
Great Britain exhibits in itself all the objects requiring legis- 
lative provision, and on these the papers called for throw no 



322 The Political History of Slavery in the United States 

light, and as it is essential to the administration of the Govern- 
ment that the boundaries fixed by the Constitution between the 
different departments should be preserved — " 

And is it not equally as important that the boundaries fixed 
by the Constitution between the Federal and State govern- 
ments should be preserved? But we proceed with the quo- 
tation — 

"a just regard to the Constitution and to the duties of my 
office, under all the circumstances of this case, forbid a com- 
pliance with your request." 

What the Constitution forbids to be answered, it equally 
forbids to be asked; what it forbids to be asked, it forbids 
shall be obtained by force and through irresponsible power. 

THE BILL IS NOT IMPOTENT AND HARMLESS 

But the bill is not even entitled to the defense of being 
entirely impotent and harmless. Impotent it is for all the pur- 
poses of good and orderly government, but it has extraordi- 
nary vigor for evil. It establishes an unwarranted Federal 
espionage over matters confided exclusively to the jurisdiction 
of the States; it invites and encourages irresponsible and dis- 
contented persons to subject the conduct of their neighbors, 
their fellow-citizens, to an investigation and scrutiny by a 
tribunal before which these persons, thus slandered, thus ma- 
liciously accused, have no opportunity of appearing, either by 
themselves or by counsel, or of summoning witnesses, or cross- 
examining those who speak against them. It is true the tribu- 
nal has no power to render judgment against them which will 
affect their lives, their liberty, or their property, but it has the 
power in an ex parte, inquisitorial way, of giving official form 
and body and substance to accusations which there has been 
no opportunity to meet, to destroy character and to blacken 
the names of citizens who are not heard in their own defense; 
to stamp as genuine and true slanders and libels ; to give cur- 
rency to blackguardism and perjury. It is true it accomplishes 
nothing in the way of enactments against personal rights, but, 
like a thief, it stealthily surveys the ground of future opera- 
tions, with the view of taking advantage of a more favorable 
opportunity for outrage and wrong. 

Considering the tendency of this bill, its usurpation of a 



The Minority Report 323 

jurisdiction over private and personal rights, reserved to the 
States for their security and protection; considering also its 
capacity as a vehicle of calumny and slander, and its tendency 
to destroy the respect and confidence of the people in consti- 
tutional guarantees and official justice, it may be well to de- 
nounce it as no common or insignificant violation of the Con- 
stitution. 

It destroys the whole scheme of the Constitution; it does 
not enter the vestibule merely and deface or destroy some 
slight ornament, but it saps and undermines the foundations of 
the temple itself. 

THE BILL UNCONSTITUTIONAL IN ITS MEANS AS WELL AS IN 

ITS ENDS 

But the bill is still further objectionable, in that it seeks to 
attain unconstitutional ends by unconstitutional means. It was 
probably fit that this work of espionage, this inquisition into 
the conduct of persons over whom we have no jurisdiction, 
this usurped function to try citizens in their absence, to con- 
demn without hearing, to circulate and give support to slander 
and calumny, should be prosecuted by a perversion to the work 
of injustice and wrong of the powers of that department which 
was more especially dedicated by the Constitution to the ad- 
ministration of right and justice. It would be a terrible but 
just retribution for our infidelity to the Constitution, if that 
great charter, for mere party advantage, is to be destroyed, 
the rights of the States to be subverted, the rights of citi- 
zens to be trodden down, that the instrument selected for these 
wicked ends should be that especial organism in our system to 
whose virtue and intelligence were committed the protection 
and preservation of all these which this bill appoints it to 
destroy. 

THE POWER CONFERRED ON THE COURTS IS NOT JUDICIAL 

The power committed by this bill to the circuit courts is 
not a judicial power of the United States, and none but ju- 
dicial power can be vested in a court of the United States. 

The Constitution declares : 

"The judicial power of the United States shall be vested 



324 The Political History of Slavery in the United States 

in one Supreme Court, and in such inferior courts as the Con- 
gress may from time to time ordain and establish." 

The Constitution in another place authorizes Congress to 
confer the power of appointing certain inferior officers on the 
courts of the United States. Beyond this there is no power 
to confer on any court of the United States any power but 
judicial power, nor any judicial power but judicial power of 
the United States. That power is defined in the Constitution 
itself, and, so far as it can have any possible relation to this 
bill, is embraced in the following words : 

"The judicial power shall extend to all cases, in law and 
equity, arising under this Constitution, the laws of the United 
States, and treaties made, or which shall be made, under their 
authority." 

It must be noted that the language used is "cases," not 
"questions," arising under the Constitution and laws of the 
United States. The distinction between "questions" and 
"cases" is important and well settled. The jurisdiction is in 
"cases." A case arises only when some question respecting 
the Constitution and laws "shall assume such form that the 
judicial power is capable of acting on it. That power is capa- 
ble of acting only when the subject is submitted to it by a 
party who asserts his rights in the form prescribed by law," 
said Chief Justice Marshall in Osborn v. United States Bank, 
9 Wheat., p. 819. 

The same great judge in his argument in the Jonathan 
Robbins case in the House of Representatives in March, 1800, 
made this matter still more plain. Referring to certain resolu- 
tions then before the House, in which it was declared that the 
judicial power extended to all "questions" arising under the 
Constitution and laws and treaties, he called attention to the 
fact that the Constitution used the word "cases," not "ques- 
tions" ; and he then said : 

"The difference between the Constitution and the resolu- 
tions was material and apparent. A 'case in law or equity' 
was a term well understood and of limited signification; it 
was a controversy between parties which had taken a shape 
for judicial decision. ... By extending this judicial power 
to all cases in law and equity the Constitution had never been 
understood to confer on that department any political power 
whatever. To come under this exception a question must 



The Minority Report 325 

assume a form for forensic litigation and judicial decision. 
There must be parties to come into court who can be reached 
by its process and bound by its powers; whose rights admit 
of ultimate decision by a tribunal to which they are bound to 
submit. (See Annals of Sixth Congress, p. 606.)" 

It is clear that this bill is unconstitutional, for not only is 
there no "case" in which a court can act, but there is not even 
a "question" arising under the Constitution, or any law or 
treaty of the United States. The questions are such only as a 
party majority may ask, and they concern only the conduct of 
parties which may be supposed to violate some laws of a State, 
over which the Federal Government has no jurisdiction what- 
ever. Not only does the jurisdiction fail, because there is no 
case before the court of any kind arising out of a Federal or 
State law, but because the power conferred by the bill on the 
circuit courts is not of itself judicial in any sense whatever. 
Keeping in mind what has already been quoted from Chief 
Justice Marshall, let us consider some authorities which treat 
of judicial power, in its essence and nature, whenever and 
wherever it is exerted. 

In Shultz v. McPheters (79 Ind. R., p. 378), the supreme 
court of that State say: 

"It is the inherent authority not only to decide, but to make 
binding orders and judgments, which constitutes judicial 
power." 

And the supreme court of Michigan, in Underwood v. 
McDuffie (15 Michigan R., 368), said: 

"The judicial power, even when used in the widest and 
least accurate sense, involves the power to hear and determine 
the matters to be disposed of; and this can only be done by 
some order or judgment which needs no additional sanction to 
entitle it to be enforced." 

And the court proceeds to condemn in totidem verbis the 
things which this bill authorizes and requires to be done. Say 
the court : 

"No action, which is merely preparatory to an order or 
judgment to be rendered by some other body, can be properly 
termed judicial." 

A learned commentator on the Constitution, discussing 
this subject, says : 

"In order to make a case for judicial action, there must be 



326 The Political History of Slavery in the United States 

parties to come into court, who can be reached by its process 
and bound by its powers, — parties whose rights admit of ulti- 
mate decision by a tribunal to which they are bound to sub- 
mit; arid also that the question to be acted on should be capable 
of final determination in the judicial department of the Gov- 
ernment, without revision or control of either the Executive 
or Legislature. (Curtis's Com., p. 96.)" 

And another learned commentator says : 

"The kind of authority that is judicial in its nature relates 
to and acts on rights of person and property not created by 
this authority, but under existing law. This authority, 'in 
specific controversies' between parties, determines these rights 
as they exist, and does so at the instance of a party. These 
qualities distinguish judicial power from what is simply exec- 
utive or legislative. (Spear on Const., p. 3.)" 

Tested by these rules, there can be no doubt that the power 
attempted to be conferred by this bill on the circuit courts is 
not of the kind which they are authorized to receive, namely, 
judicial power. This bill provides only for the summoning 
of witnesses at the instance of persons claiming no rights and 
seeking redress for no wrongs,, and then for examining them 
concerning the circumstances of an alleged homicide or seri- 
ous injury to person or property, whether consummated or 
only threatened. 

There is no controversy before the court for its determina- 
tion ; there are no parties over whom it has power ; or who, on 
the one hand, ask for a recovery of rights, or who, on the 
other, deny or contest rights demanded against them. The 
court hears nothing, deliberates on nothing, determines noth- 
ing; it renders no judgment, it restores or redresses no right 
and remedies no wrong. The court only hears evidence con- 
cerning a matter over which it has no jurisdiction and reports 
to another department its conclusions as to facts about which 
the court itself has no right to form a judgment. The sole 
power of the court is to report to the President its opinion as 
to the existence of certain facts which it is alleged are criminal 
by the laws of the State in which they transpired. The sole 
function of the court is to act as a detective for the Executive, 
to enter into a sovereign State to inquire into the conduct of 
its citizens, and to gather from common informers, in some 
instances, their impressions or beliefs, but in others their 



The Minority Report 327 

calumnies and slanders. These witnesses are not to be con- 
fronted by the persons whom they accuse, nor to be cross- 
examined to test either their accuracy or their sincerity. 
That is all of it. 



ONLY JUDICIAL POWER CAN BE CONFERRED ON COURTS OF 
THE UNITED STATES 

It is not a new or doubtful question as to the power of 
Congress to confer on any of the constitutional courts of the 
United States, — the Supreme Court, the circuit court, or the 
district court, — any authority or function not judicial. The 
question arose early during the administration of General 
Washington, under an act of Congress authorizing the circuit 
courts to inquire into the justice of certain claims for pensions. 
All the Supreme judges acting on the circuit (except Mr. 
Justice Johnson, and as to him there is no information) held 
the act unconstitutional upon the ground that the power was 
not judicial, inasmuch as the adjudication was not to be final, 
but was to be reported to the Secretary of the Treasury. Some 
of the judges, however, concluded they would, — acting as 
commissioners and not as judges in court, — perform the duty 
assigned to them under the act. Congress and the President 
being informed of the opinion of the judges, the act was re- 
pealed, saving in the repeal, however, all rights to pensions 
founded on "any legal adjudication." 

A case, during the next year, came up in the Supreme 
Court, in which the validity of an adjudication made by the 
judges, as commissioners, was the only point involved, and 
that court unanimously held that the act conferring the power 
on the circuit courts was unconstitutional, and that, as the 
power was conferred on the courts, it could not be exercised 
by the Judges as commissioners. (See Hayburn's case, 2 
Dall.) 

In the bill before us, it must be noticed that the power is 
conferred on the circuit court, not on the circuit judge. This 
was done ex industria by the Judiciary Committee, for the bill 
as originally introduced conferred the power on the judge, 
and by the Judiciary Committee it was amended as it now 
appears. The change was made for the purpose, as it was 
stated, of having a court rather than a mere judge, so that 



328 The Political History of Slavery in the United States 

the laws empowering courts to use compulsory process for the 
attendance of witnesses and punishing them for contumacy 
might apply. 

But if the bill should be amended so as to stand as it 
originally was, to give this power to the judge acting as a 
commissioner merely, it would still be liable to the objection 
of being unconstitutional, notwithstanding the judge might 
himself waive his objections and consent to act. In that case 
the bill would mean that every judge of a circuit court in the 
United States should be thereby appointed a commissioner 
to discharge the duties mentioned in the Act. This would be 
an appointment to office by Congress, and not, as the Constitu- 
tion requires, by the President by and with the advice and 
consent of the Senate. This view received the express sanc- 
tion of the Supreme Court in United States v. Ferreira (13 
Howard, 40). 

In that case Chief Justice Taney, in a very able and learned 
opinion, reviewed this whole subject. A law of Congress had 
committed to the district judge for the district of Florida the 
power and duty of examining certain claims against the United 
States for losses sustained by certain Spanish citizens. This 
law was passed in pursuance of a treaty with Spain. That 
judge, after examining the witnesses for and against each 
claim, was required to make his decision and report it to the 
Secretary of the Treasury, who, on being satisfied that the 
claim was right and just, was to pay it. On an appeal from 
a decision so made by the judge, the Supreme Court of the 
United States held that the power granted was not judicial, 
it being not final, the award of the judge being subject to 
revision by the Secretary of the Treasury. The court, speak- 
ing of the powers conferred by the Act on the district judge 
and the Secretary of the Treasury, said : 

"They are, it is true, judicial in their nature. For judg- 
ment and discretion must be exercised by both of them, but it 
is nothing more than the power ordinarily given by law to a 
commissioner appointed to examine claims to land or money 
under a treaty, or special powers to inquire into or decide any 
other particular class of controversies in which the public or 
individuals may be concerned. A power of this description 
may constitutionally be conferred on a secretary as well as 
on a commissioner. But it is not judicial in either case, in 



The Minority Report 329 

the sense in which judicial power is granted by the Constitu- 
tion to the courts of the United States." 

And having reached the conclusion that the court, as a 
court, had no constitutional power under the Act, the Supreme 
Court proceeded to consider the question, whether the power 
could be exercised by the judge, as a commissioner, without 
additional appointment to that particular office by the Presi- 
dent, by and with the advice and consent of the Senate, and 
on this point the court said : 

"The duties to be performed are entirely alien to the legiti- 
mate functions of a judge or court of justice, and have no 
analogy to the general or special powers ordinarily and legally 
conferred on judges or courts to secure the due administra- 
tion of the laws. And [continues the Supreme Court] if they 
[the district judges acting as commissioners] are to be re- 
garded as officers, holding offices under the Government, the 
power of appointment is in the President, by and with the 
advice and consent of the Senate, and Congress could not by 
law designate the persons to fill these offices." 

This case is absolutely conclusive, and settles beyond con- 
troversy that the bill is wholly unconstitutional, when con- 
sidered in its aspect of the machinery selected for making this 
inquest. In Ferreira's case the powers conferred were con- 
sidered as in their nature judicial, but yet not judicial in the 
sense of the Constitution. They were powers to determine, 
to adjust ; but because the judgment was not final, but de- 
pended for its force on the action of another department, 
though there were parties before the judge, and there was a 
real case, a real controversy between them, and in the proper 
shape for forensic and judicial action, yet for the reason 
stated, — the want of finality, — the power was held not judicial 
and incapable of being conferred on a court. The powers 
here in this bill are not even in their nature judicial; it is a 
mere power to inquire, without the power to make a decision 
or render any judgment, final or otherwise; a power simply 
to inquire and report to another department. 

The principles of this case are fully settled in our juris- 
prudence, and have been since the year 1792, when Hayburn's 
case was decided. There is no break in the continuity of the 
opinions of the Supreme Court sustaining this view. It re- 
ceived the sanction of the Supreme Court in Gordon v. United 



33° The Political History of Slavery in the United States 

States, 2 Wall. No opinion was delivered in that case, but 
one was drawn up by Chief Justice Taney just before his death, 
and is published as an appendix to volume 117, United States 
Reports. We call the attention of the Senate to it as the last 
great work of that great man. It will add to his fame by the 
soundness and force of its reasoning, and by its unanswerable 
exposition of the true position of the United States courts in 
our system. 

With this, we submit the constitutional questions involved 
in this bill to the judgment of the Senate, in the confidence 
that it has been shown, both on reason and on authority, that 
the bill, if enacted, would be a serious infraction of the Consti- 
tution, and mischievous and unjust in its enforcement. 

J. L. Pugh. 
Rich'd Coke. 
Geo. G. Vest. 
J. Z. George. 



"A BILL to provide for inquests under national authority. 

"Be it enacted by the Senate and House of Representatives 
of the United States of America in Congress assembled, That 
whenever any three citizens of the United States shall, under 
oath, present to any judge of a circuit court, either in term- 
time or vacation, their petition setting forth that within the cir- 
cuit for which such judge has jurisdiction, and within the 
State of which the petitioners are residents, any person has 
been killed, or has sustained serious bodily injury, or serious 
injury in his estate, or been threatened with injury in person 
or estate, because of the race or color of such person so killed, 
injured, or threatened, or because of any political opinion 
which such person so killed, injured, or threatened may have 
held in regard to matters affecting the general welfare of the 
United States, or with design to prevent such person so killed, 
injured, or threatened, or others, from expressing freely such 
opinion, or from voting as he or they may see fit at any elec- 
tion of officers whose election is required or provided for by 
the Constitution or laws of the United States, or to influence 
or afreet the votes of such persons or others at such elections, 
it shall be the duty of such judge, as soon as may be, to open 



The Minority Report 331 

a special session of such circuit court at such place within said 
circuit as he may appoint, and the duty of such court to hold 
an inquest into the circumstances of such killing, injury, or 
threatening, and to cause to be summoned and examined all 
such witnesses as the court may think proper. 

"Sec. 2. That said judge shall forthwith report the evi- 
dence by him taken, and his conclusions of fact thereon, to 
the President of the United States, to be by him laid before 
Congress. 

"Sec. 3. That the judge may require any district attorney 
of the United States within his circuit to attend such inquest, 
and to aid in preparing for and conducting the same, or he 
may, in his discretion, appoint any other counselor-at-law to 
prepare and conduct such inquest. 

"Sec. 4. That the expenses of such inquest shall be certi- 
fied by the judge to the Department of Justice, and paid out of 
the appropriation made for the expenses of the courts of the 
United States." 



INDEX 



Abolitionists, 86. 

Acts of Congress, 26. 

Adams, John Quincy, 58, 83, 84, 100. 

Advance in Anti-Slavery Views, 71. 

African, the, 16, 239, 241. 

African race, 86, 87, 240. 

African races, 6. 

African slavery, 304. 

African slave trade, 8. 

Africans, 4, 5, 16, 206, 234. 

Alabama, 108, 155, 189, 191, 201, 

202, 203. 
Allen, Mr., of Mass., 45. 
Amalgamation, 36, 245. 
America, 4, 5, 6. 
American character, 9. 
American Colonies, 5. 
Anglo-Saxon, the, 90, 114, 161, 218. 
Anthony, Mr., of R. I., 242, 245, 

246, 261, 262, 263, 264. 
Appomattox, 124. 
Apportionment of Representatives 

in Congress, 120. 
Arkansas, 33, 48, 63, 101, 108, 112, 

114, 188, 191, 194, 195, 196, 200, 

201, 221. 
Articles of Confederation, 41, 93, 

94, 2S7, 292. 
Asiatic race, 86, 240. 
Atlantic States, 37. 
Australia, 4. 



B 



Baldwin, Mr., of Ga., 11, 14. 

Bancroft, Mr., 5, 6, 7. 

Banks, Gen. N. P., 136. 

Baptist Church, xviii. 

Barbados, 80. 

Bartemeyer v. Iowa, 310. 

Barton, Mr., of Va., 30, 32. 

Bayard, Mr., 276. 

Beck, Mr., 203, 270. 

Bell. John, 84, 85. 

Bill to admit Louisiana, 21. 



Bill to guarantee certain States, 

whose governments have been 

overthrown, a Republican form 

of government, no. 
Bill is not impotent and harmless, 

322. 
Bill prohibiting slavery north of 

36° 30', 34- 
Bill to provide for inquests under 

national authority, 328. 
Bill to restore the States lately in 

insurrection to their full political 

rights, 133. 
Bill of Rights, 92, 93. 
Bill unconstitutional for a mere in- 
quest, 320. 
Bill unconstitutional in its means 

as well as its ends, 323. 
Bills accompanying the Fourteenth 

Amendment, 133. 
Bingham, Mr., of Ohio, 147, 

148, 192, 193, 194, 200, 224, 247, 

248. 
Blaine, Mr., 148, 149, 150, 151, 155, 

156, 158, 177, 200, 222. 
Boston, 28, 41, 72. 
Boutwell, Mr., 172, 193, 223, 229, 

230, 247, 248. 
Bowling Green, 103. 
Bradley, Mr. Justice, 314, 316. 
Brandagee, Mr., of Conn., 151. 
Breckinridge, Mr., 84, 85, 100. 
Breckinridge Democratic Platform, 

8S- 
British Army, 24. 

British Crown and Parliament, 90. 
British Government, 10. 
Broomall, Mr., of Pa., 144. 
Brown, John, 74, 75, 78, 84. 
Buchanan, Mr., 65, 66, 100. 
Buckalew, Mr., 170, 196, 216, 217, 

243- 
Bull Run, 102. 

Burrill, Mr., of R. I., 34, 2,6. 
Butler, General, 250. 
Butler, Mr., of Mass.. 247, 269. 
Butler, Mr., of S. C, 12. 



333 



334 



Index 



Calhoun, John C, xv, 96. 

California, 54, 55, 56, 57, 234, 265. 

Carolina, 5. 

Carroll County, Miss., ix. 

Carrollton, xviii. 

Catchings, Gen. T. C, xii, xvii. 

Catron, Mr. Justice, 69. 

Central Africa, 4. 

Certificate of freedom required in 
Illinois, 49. 

Channing, Mr., 80, 86. 

Charleston, S. C, 72. 

Chase, Chief Justice, of Ohio, 210. 

Cheever, Mr., 75. 

Chicago, 74, 208. 

Chief Justice of the Supreme Court 
of Mississippi, xiii. 

Chinese, 234, 235. 

Christian, the, 4. 

Cincinnati, 85. 

Circuit and District Courts of the 
United States, 135. 

Civil Rights Bill, 246. 

Civil rights, such as are guaranteed 
by the Constitution against State 
aggression, cannot be impaired by 
the wrongful acts of individuals 
unsupported by State authority, 
.3*8. 

Civil Rights Cases, 316. 

Civil Rights Law and its promoters, 

315- 
Clay, Henry, 30, 31, 42, 44, 55, 62, 

83. 87, 99, 219. 
Clifford, Associate Justice, of Me., 

2T0. 

Clymer, Mr., of Pa., 13. 

Coercion of Virginia, Texas, and 

Mississippi, 265. 
Coke, Richard, 330. 
Colonization, 106, 107. 
Comments on Civil Rights Cases, 

319- , 
Committee on Judiciary, 280, 302. 
Committee on Reconstruction, 132, 

134. I3ft T 47, 155.. 161. 
Committee on Territories, 144. 
Compact between the States, 97, 99, 

100, 219. 
Compromise, 16, iy. 
Confederacy, 97, no, in, 112, 113, 

218. 
Confederate debt, 143. 
Confederate State, 26. 



Confederate States, in, 134, 145, 
149, 192. 

Confederates, 146, 192. 

Confederation, 18. 

Conference between the President 
and the Members of Congress 
from the Border States, 104. 

Congress of the Confederation, 7. 

Conkling, Mr., 121, 122, 124, 133, 
186, 195, 208, 246, 248, 262, 273, 
276, 277. 

Connecticut, xv, 5, 9, 12, 13, 14, 18, 
21, 22, 23, 40, 41, 44, 45, 47, 52, 91, 
96, 98, 191, 196, 198, 206, 207, 223, 
227. 

Connecticut Convention, 94. 

Conservatives, xii. 

Constitution of Alabama, 189, 203, 
207. 

Constitution of Arkansas, 189, 207. 

Constitution of Florida, 189, 207. 

Constitution of Georgia, 189, 207. 

Constitution of Louisiana, 189, 204, 
207. 

Constitution of Massachusetts, 91. 

Constitution of Mississippi, 204, 268. 

Constitution of North Carolina, 189, 
207. 

Constitution of South Carolina, 
189, 204, 207. 

Constitution of Tennessee, 192, 193. 

Constitution of Texas, 204, 269. 

Constitution of Virginia, 266. 

Constitution of the United States, 
xv, xvi, 8, 11, 12, 13, 15, 16, 24, 
25, 27, 29, 30, 38, 39, 45, 48, 77, 78, 
79, 94, 95, 96. 97, 106, 108, no, 131, 
133, 135, 136, 137, 139, 140, 141, 
142, 143, 149, 154, 155, 156, 161, 
163, 167, 177, 178, 185, 186, 190, 
192, 193, 195, 196, 197, 199, 200, 
201, 202, 203, 209, 210, 218, 219, 
220, 224, 225, 227, 230, 231, 232, 
241, 254, 258, 261, 262, 264, 271, 
280, 282, 283, 284, 285, 287, 288, 
289, 290, 291, 292, 294, 295, 296, 
297, 298, 301, 302, 304, 305, 308, 
309, 310, 313, 315, 318, 320, 321. 
322, 323, 324, 325, 328, 329, 330. 

Constitution binding in all its parts. 
304- 

Constitutionality of Reconstruction 
Laws. 210. 

Continental Congress, qi. 

Convention of Pennsylvania, 9_f. 

Cook, Mr., of 111., 36. 



Index 



335 



Cooper Institute speech, 159. 
Corbett, Mr., of Ore., 235. 
Corfield v. Coryell, 301. 
"Cotesworth," Carrollton, Miss. 

viii. 
Cothran, Judge William, x. 
Cowan, Mr., of Pa., 140, 141. 
Crittenden, John J., 104. 
Cruikshank Case, 314. 



D 



Dane, Nathan, 24. 

Davis, Associate Justice, of 111., 210. 

Davis, Mr., of Ky., 171, 226, 227, 

238, 256, 263, 276. 
Davis, Mr., of Mass., 54. 
Davis, Jefferson, ix, 70, 79, 80. 
Dawes, Mr., 77, 87, 107. 
Dayton, Mr., of N. J., 52. 
Decisions that settled meaning of 

Constitution, 313. 
Declaration of Independence, 5, 7, 

84, 90, 92, 93, 115, 159, 285, 287, 

303- 

Delaware, 11, 13, 14, 223, 265, 295. 
Democratic National Convention, 

222. 
Democratic party, 65, 72, 100, 155, 

222. 
Democrats, xii, 84, 104, 246, 260. 
Dickinson, Mr., of Del., 11, 13. 
Dixon, Mr., of Conn., 226, 227, 243. 
Dillet, Mr., of Ala., 83. 
Disfranchisement, no, 134, 179, 192, 

193, 204. 
Disqualification, 260. 
Doolittle, Mr., of Wis., 138, 160, 

168, 169, 171, 196, 238. 
Douglas, Mr., 62, 63, 64, 70, 84, 85, 

88, 100. 
Douglas Democratic platform, 85. 
Drake, Mr., 259. 
Dred Scott Case, 66, 68, 69, 70. 
Dred Scott decision, 147. 
Duty comes from power, 303. 



East, the, 30, 78, 138. 
Eastern States, 13, 138. 
Editorial in Courier and Enquirer, 
78. 



Edmunds, Mr., 195, 196, 199, 221, 

238, 242, 248, 250, 251, 265, 275. 
Edwards, Mr., of 111., 31, 32, 99. 
Effect of judgment in Slaughter- 

House Case, 308. 
Elliott, Mr., of Vt, 18. 
Ellsworth, Oliver, of Conn., 9, 10, 

13, 14, 71, 94. 
Emancipation, 87, 103. 
Emancipation Proclamation, 107. 
Enabling Act, 30, 38. 
Enfranchisement of Negroes, 178. 
England, 4, 320. 
English, Mr., of Ind., 74. 
Englishman, 6. 
English Nation, 16. 
Equal rights, 239. 
Europe, 4. 
European races, 6. 
Everett, Edward, 84. 
Ex parte Milligan, 147. 
Ex parte Virginia and Neal v. 

Delaware, 311. 
Extirpation, 36. 



Farmer's Alliance, xvii. 

Farnsworth, Mr., 270. 

Federal Constitution, xvi, xvii, 3, 
7, 16, 46, 47, 84, 282, 284, 297, 302. 

Federal Convention, 3, 16, 48, 71. 

Federal Government, 3, 16, 18, 64, 
67, 94, 102, 105, 107, 113, 130, 135, 
176, 218, 219, 233, 235, 236, 239, 
282, 284, 295, 296, 300, 302, 303, 
304, 305, 306, 307, 322, 325. 

Federal Intervention, xvi. 

Federalist, the, 228. 

Federal population, 8. 

Federal and State Governments 
both parts of a whole, 282. 

Ferry, Mr., of Conn., 197. 

Fessenden, Mr., 50, 125, 126, 128, 
129, 206, 234, 243, 256. 

Field, Associate Justice, of Cal., 
210. 

Fifteenth Amendment, 47, 49, 164, 
221, 223, 224, 225, 236, 238, 241, 
243, 244, 247, 255, 257, 260, 26r, 
266, 270, 271, 275, 276, 302, 304, 

313, 3*7- 

Fillmore, President, 57, 65, 66. 
First eight amendments, 296. 
Fishing Creek, 103. 



336 



Index 



Florida, 101, 108, 189, 191, 200, 201, 
203, 328. 

Force of the Thirteenth, Four- 
teenth, and Fifteenth Amend- 
ments, 305. 

Forced to ratify a constitutional 
amendment, 163. 

Foreign slave trade, 9. 

Fort Donelson, xi, 103. 

Fort Henry, 103. 

Fortieth Congress, 147, 181, 223, 
224, 250, 268. 

Forty-first Congress, 222, 265, 269. 

Fourteenth Amendment, 132, 133, 
134, 135, 141, 142, 143, 144, 146, 
147, 148, 149, 150, 151, 155, 161, 
162, 164, 167, 172, 176, 177, 179, 
188, 189, 190, 191, 196, 200, 201, 
202, 204, 205, 207, 225, 229, 235, 
238, 260, 302, 304, 306, 309, 311, 
313, 314, 317. 

Fowler, Mr., of Tenn., 264, 276. 

France, 33, 64. 

Free Soil Convention, 51. 

Frelinghuysen, Mr., 186, 224, 243, 
250, 256, 257. 

Fremont, Mr., 65, 66. 

Fugitive slave law, 57, 59. 74. 85. 

Fuller, Mr., of Mass., 30. 



Garfield, General, 136, 137, 150, 151, 

152, 154, 155, 156, 157, 207, 247, 

260. 
Garrison, William Lloyd, 79. 
General scheme of the Constitution, 

292. 
George, Sen. James Z., vii, ix, x, 

xi, xiv, xv, xvi, xvii, xviii, 330. 
George, Joseph Warren, ix. 
George, Mary Chambliss, ix. 
Georgia, 10, 11, 13, 14, 108, 141, 189, 

203, 204, 205, 221, 222, 251, 253, 

264. 
Germany, 101. 
Gerry, Elbridge, of Mass., 11, 14, 

7i. 97- 

Giddings, Mr. 57, 58, 100. 
Goodrich, Chauncey, 24. 
Gordon v. United States, 329. 
Gorham, Mr., of Mass., 13, 15. 
Government of the United States, 

101, 289. 
Granada, 4. 



Grant, General, 204, 208, 222, 223, 

230, 255, 265, 272. 
Great Britain, 21, 22, 30, 91. 
Greece, slavery in, 4. 
Grier, Associate Justice, of Pa., 69, 

210. 
Griswold, Mr., 18, 19, 20, 98. 
Guinea, 5. 



H 



Haight, Mr., of New Jersey, 202. 

Hale, John P., 63. 

Hamilton, Alexander, 94. 

Hamlin, Mr., of Me., 84. 

Hand, Mr., of N. Y., 63. 

Harper's Ferry, 74. 

Harris and George, xii. 

Harris, Hon. Wiley P., xii. 

Hartford, 24, 46. 

Hartford Convention, 22, 47, 98, 99. 

Hawley, Mr., of Conn., 103. 

Hayburn's case, 329. 

Helper, Hinton R., 73. 

Hemphill, Mr., of Pa., 35, 36. 

Henderson, Mr., 169, 224, 228, 229. 

Hendricks, Mr., 139, 160, 163, 165, 
166, 169, 170, 175, 195, 226, 236, 
237, 245, 246, 257, 258, 259. 

Hickman, Mr., of Pa., 78. 

Hoar, Mr., 319. 

Holmes, Mr., of Mass., 30, 35, 82, 

99- 

Hostilities against the South, 76. 

House of Representatives, 8, 18, 31, 
32, 42, 44, 72, 83, 103, 104, 119, 
125, 129, 151, 153, 156, 158, 164, 
172, 200, 216, 223, 226, 227, 241, 
244, 254, 257, 258, 271, 277, 297, 
321, 324- 

Howard, Mr., 158, 161, 162, 163, 183, 
197, 229, 236, 262, 275. 

Hunter, Mr., of R. I., 32. 



Idaho, 48. 

Illinois, 49, 70, 75, 191, 207, 274. 

Impartial suffrage in force, 160. 

Indian slavery, 81. 

Indiana, xv, 50, 191, 246, 259, 272, 
274, 276, 277. 

Indiana's attitude toward the Ne- 
gro, 50, 276. 

Indians, 5, 6, 235. 






Index 



337 



Intermarriage prohibited in Rhode 

Island, 40. 
Iowa, 48, 191. 
Irrepressible Conflict, 71. 
Iverson, Mr., of Ga., 81. 



Jackson, Gen. Andrew, 28, 219. 

Jackson, Miss., xii. 

Jefferson, Mr., 64, 66, 82, 84, 86, 

87, 95, 218, 219, 239. 
Jewish nation, 4. 
Johnson, Mr., of Conn., 13. 
Johnson, Mr., of Ky., 33. 
Johnson, Mr., of La., 33. 
Johnson, Mr. Justice, 327. 
Johnson, Andrew, 107, 114, 119. 
Johnson, Reverdy, 158, 161, 163, 167, 

171, 174, 175, 179, 195, 196, 202. 
Johnson & Company, Philadelphia, 

xi. 
Johnson's Island, xi. 
Jonathan Robbins case, 324. 
Judge of the Supreme Court of 

Mississippi, xiii. 
Judiciary Committee, 59, 121, 196, 

200, 201, 202, 210, 225, 229, 231, 

241, 242, 319, 327. 
Judiciary Department, 284. 



K 



Kansas, 48, 51, 59, 62, 64, 65, 84, 191, 

207, 248, 256. 
Kansas-Nebraska Bill, 64. 
Keep, Austin Baxter, 69. 
Kelly, Mr., of Pa., 229. 
Kentucky, 59, 95, 96, 100, 258. 
Kentucky resolutions, 67, 95. 
King, Mr., of Ala., 33. 
King, Preston, 50, 51. 
King, Rufus, of Mass., 8, 12, 13, 14, 

15- 
Knott, Mr., of Ky., 231. 



La Fayette, General, 83. 

Lamar's speech, 77. 

Lane, General, 84. 

Lane, Senator, of Kan., 131. 

Langdon, Mr., of N. H., 12, 13. 



Leavell, William Hayne, viii. 

Lee's surrender, xi, 181. 

Legislature of Massachusetts, 22, 
96. 

Legislature of Mississippi, xiii, xiv, 
xvii. 

Liberator, the, 79, 80. 

Lincoln, Mr., 7, 51, 67, 70, 71, 77, 
84, 85, 86, 88, 100, 103, 104, 105, 
106, 107, 108, no, H2, 113, 114, 
119, 168, 175, 188, 210, 265. 

Lincoln's Emancipation Proclama- 
tion, 107, 108. 

Livermore, Mr., of N. H., 30. 

Livingston, Mr., of N. Y., 13. 

Lloyd, Mr., of Md., 33. 

Logan, General, 74, 247, 248, 250, 

255- 
Logan, Mr., of Ky., 33. 
Louisiana, 18, 19, 21, 30, 32, 33, 47, 

56, 64, 71, 72, 98, 101, 108, 112, 

114, 141, 149, 153, 189, 191, 200, 

201, 203, 222, 308. 
Louisiana Bill, 163, 169. 
Louisiana Purchase, 65. 
Lowndes, Mr., of S. G, 38. 



M 



McCardle, W. H., 209. 
McCardle case, 212, 214. 
McCulloch v. Maryland, 286, 

288. 
Macon, Mr., of N. C, 33, 37. 
Madison, Mr., 13, 83, 95, 97, 100, 

102, 219, 295, 297. 
Maine, 32, 35, 39, 44, 191. 
Mallory, Mr., of Vt, 44. 
Marsh, Mr., of Vt, 52. 
Marshall, Chief Justice, 218, 232, 

286, 288, 324, 325. 
Martin, Luther, of Md., 9, 14. 
Maryland, 9, io, 13, 14, 65, 93, 223, 

242, 265. 
Mason. Colonel, of Va., 8, 10, 14, 

16, 48, 218. 
Massachusetts, 5, 8, n, 12, 13, 15, 

18, 21, 22, 23, 24, 32, 35, 39, 40, 44, 

45, 52, 53, 59, 72, 80, 81, 91, 93, 

96, 98, 100, 125, 141, 168, 191, 194, 

198, 206, 234, 236, 239, 240, 253, 

256, 258, 262, 288, 290. 
Meade, General, 202, 205. 
Meigs, Mr., of N. Y., 36. 
Mellen, Mr., of Mass., 34, 99. 



338 



Index 



Memorial of citizens of Newport, 
R. I, 36. 

Mexican Republic, 54. 

Mexican War, ix. 

Mexico, ix, 54. 

Michigan, 141, 191, 207, 325. 

Middle States, 12. 

Miller, Associate Justice, of la., 210. 

Miller, Judge, 283. 

Mills, Mr., of Mass., 30. 

Miner v. Happersett, 310. 

Minnesota, 48, 191. 

Minority Report, xv, 280. 

Mississippi, xii, xiv, xv, xvi, xvii, 
108, 122, 191, 204, 205, 221, 224, 
264, 265, 266, 269, 270, 271, 272, 

2 74- 
Mississippi City, xviii. 
Mississippi Convention, xi. 
Mississippi River, 32, 116. 
Mississippi Volunteers, ix. 
Missouri, 16, 30, 32, 33, 34, 35, 37, 

38, 39, 42, 43, 44, 46, 48, 50, 59, 

63, 65, 66, 71, 83, 101, 191, 223. 
Missouri Compromise, 64, 87. 
Missouri Controversy, 15. 
Missouri River, 32. 
Mixed Schools, 204. 
Mohammedan, 4. 
Money, Hon. H. D., vii. 
Monroe, James, 83. 
Monroe County, Ga., ix. 
Montana, 48. 
Monterey, ix. 
Moore, John Bassett, 69. 
Moors, 4. 

Morris, Gouverneur, 12, 15, 16. 
Morton, Mr., 195, 234, 243, 244, 245, 

246, 253, 254, 255, 259, 271, 272, 

273, 274, 275. 
Mulattoes, 38, 40, 41, 42, 45, 48, 49, 

50, 81. 



N 



National Confederacy, 23. 
National Constitution, 23. 
National Union, 23. 
Navigation Act, 8, 14, 15. 
Neal v. Delaware, 311, 312. 
Nebraska, 48, 59, 62, 113, 191. 
Negro, the, 7, 16, 37, 39, 70, 77, 81, 

82, 103, 108, 113, 122, 126, 233,237, 

245, 246, 250, 252. 
Negro citizenship, 45, 109, 113. 
Negro equality, 245, 246, 259. 



Negro masters, 4. 

Negro race, 237, 238. 

Negro slavery, 3, 4, 5, 16. 

Negro slaves, 5, 6. 

Negro suffrage, 109, 114, 120, 121, 

124, 127, 128, 132, 136, 137, 140, 
143, 144, 146, 147, 161, 162, 171, 
176, 178, 179, 198, 205, 206, 207, 
208, 221, 223, 224, 229, 230, 231, 

234, 235, 238, 261, 273. 
Negroes, 5, 38, 39, 40, 41, 42, 43, 45, 

48, 49, 50, 51, 77, 86, 106, 107, 114, 

125, 130, 133, 140, 141, 160, 162, 
167, 172, 173, 178, 181, 193, 203, 
206, 207, 226, 227, 230, 231, 233, 

235, 246, 254, 255, 256, 261, 
262. 

Negroes excluded from militia in 

Mass., 39. 
Negroes excluded from militia in 

N. J., Vt., and N. H., 41. 
Negroes not allowed to vote in 

Northern States, 50, 122. 
Negroes prohibited from voting in 

Conn., 47. 
Neil, W. C, 77, 87. 
Nelson, Associate Justice, of N. Y., 

210. 
Nevada, 113, 191, 295. 
New England, 4, 5. 19, 22, 24, 43, 

81, 101, 128, 206, 260, 295. 
New England Confederacy, 5, 93. 
New England ports, 16. 
New England States, 22, 24, 98. 
New Hampshire, 12, 13, 18, 21, 22, 

4h 75, 9i, 96, 191, 242. 
New Haven, 5, 227. 
New Jersey, 5, 13, 34, 41, 44, 45, 46, 

191, 201, 202, 207, 221, 223. 
New Mexico, 55. 
New Orleans, 24, 28, 72, 159, 306. 
New World, 7. 
New York, 5, 13. 44, 45, 72, 91, 92, 

94, 123, 146, 150, 159, 191, 206, 221, 

223, 234, 277, 295. 
New York Evening Post, 75. 
Newport, R. I., 16. 
Niles, Sen. J. M., 53. 
Noble, Mr., of Ind., 33. 
North, the, 3, 8, 15, 30, 44, 48, 52, 

55. 56, 60, 71, 72, 75. 78, 79, 84, 

86, 87, 101, 103, 106, 107, 143, 147, 

159, 160, 193, 206, 208, 233. 
North Africa, 4. 
North Carolina, 12, 13, 73, 97, 108, 

189, 191, 200, 201, 203, 204. 



Index 



339 



Northern States, 3, 7, 8, 12, 15, 21, 
42, 65, 66, 71, 76, 87, 88, 120, 122, 
127, 128, 130, 131, 133, 136, 149, 
T 55> T 65, 198, 210, 221, 223, 228, 
234, 235, 254, 255, 264, 277. 

Norton, Mr., of Minn., 263. 

Noxubee County, Miss., ix. 



O 



Ohio, 39, 191, 194, 201, 202, 207, 223, 
241, 242, 274, 275, 276, 277. 

Only judicial power can be con- 
ferred on courts of United 
States, 327. 

Ordinance of Secession, xi. 

Oregon, 48, 50, 87, 191, 207, 222, 
234, 235, 265. 

Oregon bill, 63, 106, 158. 

Oregon's attitude toward the Ne- 
gro, 50. 

Organization of territorial govern- 
ments in Kansas and Nebraska, 

59- 

Osborne v. United States Bank, 324. 

Otis, Harrison Gray, of Mass., 24, 
99. 



Pacific Ocean, 116. 

Parrott. Mr., of N. H., 32. 

Passenger Cases, 292. 

Patterson, Mr., of N. H., 243. 

Penn, William, 6. 

Pennington, Mr., of N. J., 72. 

Pennsylvania, 6, 11, 13, 45, 92, 94, 
123, 146, 191, 198, 223. 

Penruddock, 5. 

Phillips, Wendell, 75. 

Pierce, Mr., 59, 100. 

Pinckney, Mr., of S. C, 9, 11, 12, 
13. 14, 82, 99. 

Pindall, Mr., of Va., 30. 

Pinknev, Mr., of Md., 38. 

Piatt, Sen. O. H., xv. 

Plea for harmony and restoration, 
166. 

Plumer, Mr., of N. H., 35. 

Plymouth. 5. 

Pomeroy, Mr., of Kan., 233, 234, 
248. 

Power conferred by the Amend- 
ments relates only to State ac- 
tion, 308. 



Power conferred on the courts is 

not judicial, 323. 
Power to inquire limited by the 

jurisdiction over the subject, 321. 
Powers conferred on United States 

supreme, 288. 
Powers of the United States are 

delegated, 292. 
, Powers prohibited to the States, 

295- 
Presidential Election of 1856, 64. 
Providence Isle, 5. 
Provisional Governors, 114. 
Pugh, J. L., 330. 
Puritans, 81. 



Q 



Quakers, 59, 81. 

Quincy, Mr. Josiah, 19, 56, 98. 
Quotations from the Supreme 
Court, 310. 



R 



Racial tendency, 237. 

Randolph, Mr., of Va., 13. 

Raymond, Mr., of N. Y., 149, 150. 

Reconstruction Acts, 211. 

Reconstruction Committee, 139, 148, 
193, 269. 

Reconstruction in Arkansas, 188. 

Reconstruction in North Caro- 
lina, South Carolina, Louisiana, 
Georgia, Alabama, and Florida, 
189. 

Reorganization of the Supreme 
Court, 68. 

Report of the minority of the Judi- 
ciary Committee of the United 
States Senate on the Constitu- 
tional questions involved in the 
bill to provide for inquests under 
national authority, xiv, xv, 280. 

Republican National Convention, 
64, 107, 208, 222, 224, 226, 235, 
236. 

Republican party, 64, 74, 144, 222, 
226, 228, 230. 

Republican platform of 1800, 95. 

Republicans, 104. 

Resolution of Massachusetts, 22. 

Resolutions of 1798 and 1709, 19. 

Restriction of slavery, 36. 

Revolution, the, 9, 93. 

Revolutionary War, 40, 41. 



340 



Index 



Rhode Island, 16, 21, 22, 24, 40, 41, 
42, 44, 45, 94, 96, 97, i9i, 198, 206, 
260, 262, 295. 

Rights of citizens, 305, 306. 

Rights of citizens of United States 
enumerated, 307. 

Rights not protected against State 
action, 296. 

Rights secured against Federal ac- 
tion by amendments, 297. 

Rome, 4. 

Royalist prisoners, 5. 

Royalist prisoners taken at Worces- 
ter sold into servitude in New 
England, 5. 

Ruggles, Mr., of Ohio, 99. 

Rutledge, Mr., of S. C, 12. 



Sanctity of marriage, 6. 
Saulsbury, Mr., 167, 170, 171. 
Sawyer, Mr., of S. C, 254, 255, 265. 
Saxon, the, 4. 
Schenck, Mr., of Ohio, 122, 124, 

212, 213, 214, 215, 247. 
Scots, 5. 
Scots taken on field of Dunbar sold 

into servitude in New England, 5. 
Scott, General, 59. 
Sectional jealousies, 14, 21, 48, 52, 

61. 
Separation of the races, 50. 
Sergeant, Mr., of Pa., 38. 
Seward, Mr., 60, 61, 62, 68, 69, 72, 

77, 83, 84, 86, 106, 159, 191, 201. 
Seymour, Governor, 222. 
Shellabarger, Mr., 247. 
Sherman, Mr., of Conn., 9, 12, 14. 
Sherman, Senator, xiv, 9, 12, 14, 72, 

138, 171, 172, 174, 178, 180, 181, 

182, 197, 198, 200, 201, 228, 229, 

240, 241, 245, 246, 260, 275. 
Sherman Anti-Trust Law, xiv. 
Schultz v. McPheters, 325. 
Slaughter-house Cases, 283, 301, 

305, 308, 310, 313. 
Slave-breeding States, 14. 
Slave trade. 14, 37. 
Slavery, 3, 4, 5, 10, 11, 85, 86, 302. 
Slavery abolished, in. 
Slavery in the 36th Congress, 72. 
Slavery in Massachusetts, 80. 
Slavery of the Negro, 16. 
Slavery a Southern institution, 7. 



Slavery a State matter, 71. 

Smith, Mr., of S. C, 35, 41. 

Smith, Mr., of Va., 33, 35, 38, 75, 
78, 82, 83. 

Smith, Caleb B., of Ind., 53. 

Social equality, 245. 

Some of the great powers reserved 
to the States, 300. 

South, the, xv, 3, 21, 56, 60, 62, 66 
67, 72, 76, 77, 78, 84, 86, 87, 88, 89 
92, 103, 107, 115, 127, 131, 136 
137, 142, 143, 144, 145, 151, i6o : 
173, 186, 193, 207, 220, 232, 239 
316. 

South America, 104. 

South Carolina, 9, 10, n, 12, 13, 14, 
42, 72, 108, 146, 189, 191, 200, 201, 
203, 204. 

Southern debt, 166. 

Southern States, xvi, xvii, 3, 9, n, 
12, 15, 27, 28, 38, 48, 65, 76, 113, 
114, 119, 120, 121, 124, 126, 131, 
134, 137, 140, 141, 142, 143, 144, 
145, 146, 148, 149, 151, 155, 156, 
157, 158, 159, 166, 172, 173, 175, 
177, 178, 179, 183, 184, 188, 194, 
197, 198, 199, 202, 206, 207, 208, 
209, 220, 221, 222, 225, 226, 233, 
235, 237, 238, 250, 260, 261, 264, 
276, 281, 305, 306, 312, 315. 

Spain, 4. 

Sprague, Mr., of R. I., 242. 

State Government, 18, 282. 

State rights, 284, 320. 

States, 3, 7, 8, 9, 11, 149, 152, 155, 
156, 158, 159, 161, 167, 168, 169, 
172, 183, 194, 231, 233, 234, 240, 
286, 287, 289, 290, 291, 293, 295, 
296, 297, 298, 299, 301, 303, 304, 
310, 314, 320, 323. 

States are free, equal, and sover- 
eign, 287. 

States, the, essential bases of our 
system, 284. 

Status of the Southern States, 167. 

Stevens, Mr., of Pa., 212. 

Stevens, Thaddeus, 120, 121, 123, 
124, 128, 136, 137, 145, 146, 147, 
148, 150, 151, 152, 155, 156, 172, 
203, 207, 214, 236. 

Stewart, Mr., of Nev., 130, 138, 158, 
159, 163, 181, 195, 207, 224, 225, 
231, 248, 250, 255, 256, 259, 260. 

Stokes, Mr., of N. C, 33. 

Stone, Gov. John M., xiii. 

Storrs, Mr., of N. Y., 32, 34. 



Index 



341 



Story, Mr. Justice, 232, 313. 

Strander v. West Virginia, 310. 

Strong, Mr. Justice, 311. 

Strongest opposition to slave trade, 
14. 

Suffrage in Northern States, 131. 

Sumner, Mr., 120, 125, 126, 127, 145, 
167, 168, 169, 171, 172, 174, 177, 
17S, 181, 182, 183, 194, 199, 200, 
201, 228, 229, 236, 243, 265. 

Sundry Civil Appropriation Bill, xiv. 

Supreme Court, xvii, 66, 67, 68, 69, 
96, 147, 176, 177, 178, 195, 199, 205, 
209, 210, 211, 212, 214, 217, 218, 
219, 288, 301, 302, 304, 305, 310, 
312, 313, 314, 315, 316, 319, 324, 
327, 328, 329. 

Supreme Court affirms the princi- 
ple, 301. 

Supreme Court of Mississippi, x. 

Survey of the whole scheme, 298. 

Swayne, Associate Justice, of Ohio, 
210. 



lalmadge, Mr., of N. Y., 30, 31. 

Taney, Chief Justice, 69, 286, 292, 
328, 330. 

Taylor, Mr., of Ind., 32, 33. 

Taylor, Mr., of N. Y., 30, 32. 

Taylor's amendment, 32. 

Tennessee, 59, 100, 103, 108, 144, 
148, 150, 188, 191, 192, 193, 194, 
200, 213. 
• Tenth Amendment, 292. 

Territories of the United States, 68. 

Texas, 52, 53, 55, 57, 65, 71, 100, 101, 
108, 191, 204, 205, 221, 224, 264, 
265, 269, 270, 271, 272, 274. 

That duty comes from power re- 
served, 303. 

Thatcher, Mr., of Mass., 18, 19, 20, 
98. 

"The Impending Crisis," 73. 

These decisions settled the meaning 
of the Constitution, 315. 

These great rights are not pro- 
tected against State action, 298. 

Thirteenth Amendment, 114, 119, 
134, 176, 179, 192, 302, 304, 311, 
313. 3M. 315- 

Thirty-ninth Congress, 144, 150, 268. 

Thomas, Mr., of 111., 32, 33. 

Thomas's amendment, 32, 33, 34. 

Thurman, Mr., 273, 274, 276. 



Traffic in slaves, 4. 
Trimble, Mr., of Ohio, 32, 33, 99, 
Trimble's amendment, 33. 
Trumbull, Judge, of 111., 50, 106, 142, 

196, 210, 234, 243, 245, 246, 277. 
Turpie, Senator, xv. 



U 

Underwood v. McDuffie, 325. 

Union, the, 9, 10, 11, 12, 19, 25, 26, 
27, 28, 30, 32, 37, 38, 42, 45, 52, 
55, 63, 64, 71, 75, 78, 87, 89, 96, 97, 
98, 99, 100, 102, 108, 113, 116, 125, 

135, 136, 145, 152, 153, 167, 168, 
169, 177, 179, 183, 192, 198, 210, 
211, 219, 223, 232, 241, 263, 286, 
287, 288, 289, 290, 291, 303. 

Union is voluntary and of equal 
States, 289. 

Union party, 84. 

Union platform, 85. 

United States, 9, 16, 19, 24, 26, 27, 
32, 53, 60, 62, 64, 67, 72, 90, 91, 94, 
95, 101, 103, 105, 108, no, 120, 133, 

136, 146, 147, 149, 153, 176, 183, 
186, 190, 192, 193, 198, 211, 220, 
224, 226, 227, 231, 232, 234, 235, 
239, 241, 242, 243, 244, 247, 248, 
267, 283, 284, 285, 286, 288, 292, 
293, 294, 295, 296, 297, 303, 306, 
307, 308, 309, 310, 316, 317, 318, 
323, 3 2 4, 325, 327, 328, 330, 33 1- 

United States Army, 129, 134, 186. 

United States Congress, ix, xvii, 8, 
26, 28, 32, 37, 39, 42, 43, 45, 46, 53, 
59, 63, 67, 73, 74, 91, 94, 105, 106, 
112, 113, 133, 137, 141, 142, 143, 
144, 145, 146, 147, 149, 150, 151, 
153, 154, 156, 157, 158, 161, 162, 
164, 168, 169, 175, 176, 182, 184, 
185, 187, 188, 190, 192, 195, 196, 
197, 198, 199, 200, 201, 204, 205, 
209, 211, 219, 221, 234, 245, 247, 
257, 260, 262, 281, 282, 286, 305, 
306, 309, 311, 312, 313, 314, 315, 
317, 318, 319, 327, 328. 

United States Court, 153, 209. 

United States Navy, 129, 134, 186. 

United States Senate, x, xiv, xvii, 
xviii, 7, 31, 37, 55- 63, 102, 119, 
135. 138, 141, 145, 153, 158, 161, 
170, 172, 178, 183, 184, 185, 194, 
195, 215, 217, 233, 243, 244, 321, 
330. 



342 



Index 



United States v. Cruikshank, 288, 

302, 310. 
United States v. Ferreira, 328, 329. 
United States v. Harris, 312, 324. 
United States v. Reese, 310. 
United States the final judges of 

their own powers, 282. 
Utah, 55, 57, 63. 



V 



Vallandigham, Mr., 76. 

Vermont, 5, 21, 22, 41, 59, 91, 96, 

100, 101, 191, 256, 319. 
Vest, George G., 330. 
Vickers, Mr., of Md., 231, 232, 233. 
Virginia, 4, 7, 8, 9, 10, 11, 13, 14, 38, 

47, 74, 80, 81, 84, 92, 93, 95, 96, 

108, 113, II4, 169, 191, 205, 221, 

224, 242, 264, 265, 266, 267, 269, 
270, 271, 272, 273, 284, 288, 290. 

Virginia and Kentucky resolutions, 
67, 100. 

Virginia resolutions, 95. 

Virginia v. Rives, 310, 314. 



W 

Wade, Mr., of Ohio, 88, 232. 
Waite, Chief Justice, 283, 288, 303, 

3*0. 
Walker, Mr., of Ala., 33. 
Walthall, Gen. E. C., x, xix. 
Ward v. Maryland, 302. 
Warner, Mr., 240. 
Warner, Mr., of Ala., 264. 
Washburne, Mr., of 111., 202. 
Washington, D. C., xv, 155. 



Washington, George, 41, 64, 284, 

321, 327- 
Washington, Judge, 301, 302. 
Washington State, 48. 
Webster, Mr., 56, 57, 60, 96, 253. 
Welch, Mr., 239. 
West, the, 78, 138. 
West Indies, 5, 239, 240. 
West Virginia, 191, 321. 
Western States, xvii, 28, 76, 138. 
Whig party, 64, 65. 
Williams, Mr., of Ore., 158, 161, 

163, 216, 225, 234. 
Williams-Johnson amendment, 167, 

171. 
Williamson, Mr., of N. C., 12, 13. 
Wilmot, Mr., 54. 
Wilmot Proviso during the war 

with Mexico, 53, 54, 56. 
Wilson, Mr., of la., 121, 213. 
Wilson, Mr., of Mass., 79, 80, 120, 

128, 129, 130, 138, 141, 160, 161, 

174, 186, 207, 224, 227, 242, 252, 

253, 262, 263. 
Wilson, Mr., of Pa., 11, 13, 94. 
Wilson, President, xiv. 
Winthrop, Mr., of Mass., 53. 
Wisconsin, 191, 207. 
Wolfe, Sen. James D., 37, 41. 
Woodward, Mr., of Pa., 244, 247. 
Woods, Mr. Justice, 313. 
Worcester, 5. 
"Works of James Buchanan," 69. 



Yazoo Delta, xii. 

Young, Miss Elizabeth, x. 



708 



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1 1 iiiiii 



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